Board of Public Education School District v. Beilan , 386 Pa. 82 ( 1956 )

Opinion by

Mr. Justice Chidsey,

Herman A. Beilan, a professional employe of the School District of Philadelphia, taught English for the Simon Gratz High School. He had been a teacher in the District for about 23 years. At the written request of Dr. Louis P. Hoyer, Superintendent of the Philadelphia Public Schools, Beilan reported to the Superintendent’s office for an interview on June 25, 1952. Dr. Hoyer advised Beilan that he had information bearing on the question of the latter’s loyalty and wanted to know whether the information was correct. Mr. Beilan suggested that the Superintendent ask the questions, whereupon Dr. Hoyer asked whether Mr. Beilan was Press Director of the Professional Section of the Communist Political Association in 1944. Beilan did not ansAver the question but stated he wanted to consult counsel. Dr. Hoyer acceded to this request and stated that he wanted Beilan to report again after he had consulted counsel. There the matter rested until Dr. Hoyer made a written request in October that Mr. Beilan report to the Superintendent’s office on October 14th to further discuss matters already brought to Beilan’s attention. Beilan came to the Superintendent’s office and stated that he had consulted counsel and had been advised that he could not legally answer the question asked about his Communist activity in 1944 or similar questions. Dr. Hoyer ad\ised Mr. Beilan that this was a very serious and important matter and that failure to answer might lead to his dismissal. Beilan, however, persisted in his refusal.

On NoA^ember 18, 1953 Beilan testified before a subcommittee of the House Committed on Un-American ActiAdties of the House of Bepresentatives of the United States Congress. He testified to his educational and employment background. When asked by the Committee whether he had ever been a member of the Commúnist Party, Mr. Beilan pleaded the privilege of the Fifth Amendment of the Federal Constitution. Counsel for the Congressional Committee stated that the Committee had received sworn testimony that Mr. Beilan was a member of the Communist Party; that in 1943 and 1944 he was a member of the Daily Worker Press Club; that he was Press Director of the Professional Section of Section S of the Communist Political Association in 1944; that he was Secretary of Section 8 of the Communist Political Association in 1945 ; that he was a membei* of the Communist Party and held membership book number 78343 in 1944; that he held membership book number 87591 in the Communist Party in 1945; that he was organizer of the Professional Section of the Communist Party of Eastern Pennsylvania and Delaware in 1946 and 1947; that he was a member of the International Workers Order (an organization cited by the IT. S. Attorney General as subversive) in 1947 and 1949. He was asked separately about each of these activities. In each case he refused to answer and relied on the protection of the Fifth Amendment.

On December 22, 1953 the Board of Education conducted a formal hearing which was private at Mr. Beilan’s request.¹ Beilan, who was represented by counsel, did not testify in his own behalf. The hearing was conducted pursuant to a resolution passed by the Board wherein Beilan was charged under Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P. L. 30, 24 PS §11-1122, with incompeteney and persistent and wilful violation of the school laws. The charge of incompeteney was based on two counts, one, Mr. Beilan’s conduct in refusing to respond to the Superintendent’s inquiry as to his loyalty and the other his conduct in refusing to respond to the Congressional Committee’s inquiry as to his alleged Communist affiliations, to which he invoked the Fifth Amendment. On January 7,1954 by a vote of 14 to 1, the Board held that the charges had been sustained and ordered Mr. Beilan’s discharge. Beilan appealed to the Superintendent of Public Instruction of the Commonwealth, who upheld the action of the Board. Beilan then appealed to the Court of Common Pleas of Philadelphia. His appeal was heard on the record and no further testimony was taken. The court reversed the order of the Superintendent of Public Instruction and set aside Mr. Beilan’s dismissal. This appeal followed. Extended briefs were filed on behalf of appellant and appellee, and the American Civil Liberties Union filed a brief under Rule 46 urging affirmance.

From the opinion of the court below it appears that its decision was based first on the ground that the charges did not come within the purview of the School Code, and second that “. . . the proceedings before the Board of Education were actually concerned solely with the question of appellant’s [Beilan’s] suspected disloyalty. . . .”. We disagree with both of these conclusions.

Considering them in reverse order, we find absolutely no support for the second conclusion reached by the court below.² It not only impugns the good faith of the members of the Board but completely brushes aside the record which consistently from beginning to end irrefutably demonstrates that appellee was not dismissed for subversion or disloyalty but for refusal to answer pertinent questions bearing directly upon Ms fitness as a teacher and, therefore, his competency. This is clear from the charges, the testimony adduced and the rulings of the Chairman of the Board who presided at the hearing. The issue before the Board was expressly defined and limited at the outset of the hearing by counsel for the Board and counsel for the appellee who were in complete agreement in this regard.³ The court’s conclusion is the more difficult to understand in view of the statement in its opinion that “Appellant was not dismissed on the ground that he advocates or participates in subversive doctrines. His contract of employment was terminated on the alleged grounds of incompetencv as a teacher and of wilful and persistent violation of the school laws.”, and later in its opinion that “. . . the testimony presented at the hearing related merely to appellant’s refusal to answer questions, and no attempt was made to prove that appellant was actually a Communist or otherwise disloyal.”.

We turn to the conclusion of the court below that the charges against appellee did not come within the grounds for dismissal set forth in the School Code of 1949, supra. Under the Act of May 18, 1911, as amended by the Act of June 20, 1939, P. L. 482, the grounds for dismissal of a teacher were “immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, and persistent and wilful violation of the school laws of this Commonwealth”. The School Code of 1949 added as an additional ground for dismissal “advocation of or participating in un-American or subversive doctrines”. In 1951 there was enacted the Loyalty Act, sometimes called the Pechan Act, which provides for the removal of subversives in all areas of public service. Section 18 of this Act repealed Section 1122 of the School Code of 1949 in so far as it authorized dismissal of a teacher for “advocation of or participating in un-American or subversive doctrines”. All other grounds for dismissal, including incompetency, remained in force as theretofore. If the appellee had been charged with being a subversive it may be conceded that the Loyalty Act should have been employed, but this was not the charge. Appellee was charged with incompetency based on his refusal to respond to a pertinent inquiry as to his fitness to be a teacher. The Loyalty Act preempted the field of dismissal for subversion as therein defined, but other causes of dismissal remained unaffected. Section 15 of the Loyalty Act expressly provides: “The provisions of this act shall not affect the right to discharge any person for any cause other than those provided for by this act or without cause under existing law. . . .”. Moreover the Loyalty Act provides neither the procedure nor the substantive law with respect to the duty of a teacher to answer proper questions. The provisions of the School Code do provide the basis for dismissal of a teacher who refuses to answer such questions.

We have held that incompetency as a cause for dismissal is to be given a broad meaning. In Horosko v. Mount Pleasant Township School District et al., 335 Pa. 369, 6 A. 2d 866, Mr. Justice Linn, speaking for the Court, at pps. 374-375 said: “The term ‘incompetency’ has a ‘common and approved usage’. The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C. J., with reference to a number of supporting decisions, it is defined: ‘A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty.’ In Black’s Law Dictionary (3rd edition) page 945, and in Bouvier’s Law Dictionary (3rd revision), p. 1528, it is defined as ‘Lack of ability or fitness to discharge the required duty.’ Cases construing the word to the same effect are found in Words and Phrases, 1st series, page 3510, and 2nd series, page 1013. Webster’s New International Dictionary defines it as ‘want of physical, intellectual, or moral ability; insufficiency ; inadequacy; specif., want of legal qualifications or fitness.’ Funk & Wagnalls Standard Dictionary defines it as ‘General lack of capacity of fitness, or lack of the special qualities required for a particular purpose.’ ”.

Certainly a teacher who refuses to respond to a pertinent inquiry relative to his fitness to teach is not competent within the broad reach of that term, whether the inquiry concerns loyalty or any other proper subject of inquiry. Frankness and cooperation with an administrative superior bear directly upon a teacher’s competency. They are as essential in one occupying a post of public trust and civic responsibility as academic qualifications. Can it be seriously argued that where the superintendent of schools has trustworthy information indicating that a teacher has an incurable communicable disease or that he is a peddler of narcotics or, as here, that he may entertain Communistic ideologies which could be transmitted to the youth in his care, that no inquiry can be made as to the fact and that the teacher is not required to respond? As well stated in the brief of counsel for the appellant: “. . . The State Constitution requires the General Assembly to maintain a thorough and efficient system of public schools. The School Code is the legislative implementation of this Constitutional duty. The rights and duties of a Superintendent have grown with custom and with professional usage. Many of his duties are imposed on bim by tradition. It is one of his duties under the School Code to make sure that the teaching staff is competent, and therefore to weed out professionally unfit teachers. This is a continuing process that the Superintendent carries on. The Superintendent has the power and the duty, whenever the facts indicate the need, to inquire into and reevaluate the fitness of a teacher.”. Unquestionably there is a reciprocal duty on the part of the teacher to fully and frankly cooperate. He may not block such proper inquiry by secretiveness or concealment.

In Adler et al. v. Board of Education of the City of New York, 342 U. S. 485, the majority opinion of the U. S. Supreme Court by Mr. Justice Minton, upholding the constitutionality of the Feinberg Law which prohibits employment of members of subversive organizations in the public schools of the State of New York, stated at p. 493: “. . . A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted.”

In the instant case the court characterized appellee’s conduct as “misguided secretiveness and lack of candor”, which it said it did not condone. The secretiveness consisted of a deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness. Such conduct stamped him with incompetence as a professional employe in the public schools.

The court below states that the Superintendent’s query related to a political association alleged to have occurred eight years prior to the interview and that appellee’s refusal to answer “that question” was obviously not relevant to the issue of his present competency. The court overlooks the fact that appellee not only refused to answer the question put to him, but any similar questions. From the testimony it is obvious that the question asked by the Superintendent was the forerunner of other similar questions, the asking of which was effectually thwarted by appellee’s refusal to answer any questions of similar import. Moreover, the one question asked, that is, whether appellee had been Press Director of the Professional Section of the Communist Political Association, was a most significant one and although dating back to 1944, was pertinent and of importance for determination whether the affiliation still existed, or if not, the circumstances under which it had terminated. Inquiry into appellee’s past activities was relevant to his present fitness. It is unnecessary to rely only upon the statement of Dr. Francis B. Haas, Superintendent of Public Instruction and an eminent educator, that in sustaining a teacher’s dismissal, past activities are relevant to present fitness, for such has been unequivocally declared by the U. S. Supreme Court. In Adler et al. v. Board of Education of the City of New York (1952), supra, the Court stated: “. . . One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one’s reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.”.

In Garner et al. v. Board of Public Works of Los Angeles et al., 341 U. S. 716 (1951), the TJ. S. Supreme Court upheld a statutory requirement of the City of Los Angeles that city employes disclose, under affidavit, any past or present Communist membership. Certain employes had taken the loyalty oath required by the same law, but refused to furnish the information required in the affidavit. In the opinion of the Court it is stated, p. 720: “We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment.”

In the recent case of Slochower v. Board of Higher Education of New York City, 350 U. S. 551 (1956), Slochower had been dismissed by the Board as an associate professor at Brooklyn College under a section of the City Charter which provided: “. . . that, whenever a city employee utilizes the privilege against self-incrimination to avoid answering before a legislative committee a question relating to his official conduct, ‘his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.’. . In setting aside the dismissal, Mr. Justice Clark, who delivered the opinion of the Court, pointed out that dismissal under the section was automatic, with no right to charges, notice, hearing or opportunity to explain, and thus lacking in due process. In its opinion the Court referred to the Garner case. In distinguishing it from the case at hand the Court stated at p. 556: “. . . Garner v. Los Angeles Board, 341 U. S. 716, 720, upheld the right of the city to inquire of its employees as to ‘matters that may prove relevant to their fitness and suitability for the public service,’ including their membership, past and present, in the Communist Party or the Communist Political Association. There it was held that the city had power to discharge employees who refused to file an affidavit disclosing such information to the school authorities.”. And again at p. 558: “It is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or gov-eminent of the city, or . . . official conduct of city employees.’ In this respect the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. . . .”.

Following the erroneous concept of the issue by the court below, much of the argument of counsel for appellee proceeds upon the unwarranted assumption that appellee was charged with subversion. In the Slochower case the Supreme Court reaffirmed its ruling in an earlier case that the privilege of self-incrimination is not the equivalent of a confession of guilt or conclusive presumption of perjury. If appellee had been charged with subversion, his reliance upon the Fifth Amendment at the Congressional hearing would not have established his disloyalty. But the charge here was not disloyalty but incompetency, based on his refusal to respond to inquiry pertaining to his fitness.

There were three charges against the appellee and if any one of them was sustained, his dismissal was justified. We are satisfied that his refusal to answer the inquiry of his administrative superior constituted incompetency within our definition of that term. We therefore deem it unnecessary to pass upon the other charges preferred, based upon his refusal to answer questions before the Congressional Committee and on persistent and wilful violation of the school laws. Appellee cites Wieman et al. v. Updegraff et al., 344 U. S. 183, where the Supreme Court held that dismissal of governmental employes for failure to take the loyalty oath prescribed by an Oklahoma statute was lacking in due process. Mr. Justice Clark, in discussing the Wieman case in his opinion in the Slochower case, pointed out that the Oklahoma loyalty oath based nonemployability solely on the fact of membership in certain organizations, that such membership might be innocent and that “the classification of innocent and guilty together was arbitrary”. In the Wieman case Mr. Justice Clark reconciled the decision in the Garner case where the loyalty oath involved did not expressly require knowledge of the aims and purposes of the Communist Party or Communist Political Association by stating that scienter was implicit in each clause of the oath and that it was assumed in Garner that Los Angeles would give the petitioners who had refused to sign the oath an opportunity to take it as interpreted and resume their employment. In Wieman failure to take the proscribed oath automatically disqualified persons from public employment. They were afforded no opportunity to explain that during their affiliation with a proscribed organization they were innocent of its purpose. In the instant case full opportunity was afforded to appellee to deny his affiliation with any Communist body, or if such existed, that he did not know of the organization’s aims and objectives or that he had completely disassociated himself from any such affiliation. Unquestionably an affirmative answer to the Superintendent’s question about a past subversive affiliation would have been followed by inquiry whether such affiliation or other affiliations still existed, or if they had been discontinued, when and under what circumstances. This would have been a normal course of inquiry. We know of no case where a teacher has been dismissed who has entirely discarded past subversive affiliations and has abided by a loyalty oath taken in good faith. Both the Garner and the Wieman cases uphold the right of the public employer to inquire into the employe’s fitness. The provisions with respect to the loyalty oaths there involved embodied a complete inquiry. In the instant case appellee manifested his recalcitrance at the initial question asked. He refused to answer any questions of the Superintendent bearing on the subject matter. Thus he completely thwarted any inquiry. The inquiry was blocked at the threshold and was rendered completely abortive.

Appellee also contends that the Superintendent was not authorized to make the inquiry. There is no more important branch of government than the administration of our public school system. It is a continuing process of education for the maintenance of our democracy. The right of a superintendent of schools to reevaluate a teacher’s fitness to be retained in his position is inherent and need not be expressly authorized by statute or local rule or regulation. In a private school the refusal to respond to a pertinent inquiry as to a teacher’s fitness made by the superintendent or head of the institution certainly would not be tolerated, but would result in the teacher’s discharge. A public school should not be placed in an inferior position in this regard. While the tenure provisions of the School Code protect teachers in their positions from political or other arbitrary interferences, they were not intended to insulate them from proper inquiry as to their fitness and their discharge for failure to cooperate with their superiors in authority to the detriment of the efficient administration of the public school system. The School Code expressly provides that incompetence shall be a cause for dismissal and under the broad meaning properly ascribed to that term, appellee rendered himself incompetent as a member of the school organization.

Counsel for appellee refers to our decision in Commonwealth ex rel. Roth v. Musmanno, 364 Pa. 359, 72 A. 2d 263; Schlesinger Petition, 367 Pa. 476, 81 A. 2d 316; Matson v. Jackson, 368 Pa. 283, 83 A. 2d 134. In the Both case we held that the privilege of serving as a juror may not be extinguished, abated or diminished by any proceeding lacking in due process. In the Schlesinger case ;we similarly held that the privilege of an attorney to practice Ms profession could not be extinguished, abated or diminished without a proceeding conforming to due process. In the Matson case we held that the Administrative Code does not confer any authority upon the Attorney General to conduct a public hearing into the alleged Communistic leanings of a district attorney. In the instant case the School Code authorized the dismissal of a teacher for incompeteney and prescribed at length the procedure with respect thereto. Under its provisions appellee was notified in wri ting of the charges against him. He received a hearing before the Board of Education and exercised the right given him to appeal to the State Superintendent of Public Instruction and thereafter to the court. It cannot be claimed, therefore, that his dismissal was without due process of law.

In refusing to answer the Superintendent’s inquiry appellee asserted no constitutional right or privilege. The Superintendent had the power, if not indeed the duty, to make the inquiry, and appellee had the duty to cooperate by answering freely and frankly. His defiant conduct in refusing to respond justified Ms dismissal on the ground of incompetency.

The order of the court of common pleas is reversed and the order of the State Superintendent of Public Instruction affirming appellee’s dismissal by the Board of Public Education is sustained at the cost of appellee.

1 The court below refers to the interval which elapsed between the interviews by the Superintendent and the institution of charges and hearing thereon. A substantial number of other teachers refused to respond to similar inquiries made by Dr. Hoyer, the Superintendent of Schools. No charges were preferred against any of them by the School Board until all had been interviewed. Counsel for appellant states in his brief that, as in Beilan’s case, the interviews were conducted privately so that the teachers would not be embarrassed by publicity and that this toot a great deal of time.

2 In its opinion the court states: “The school authorities obviously desired to dismiss appellant because they suspected him of disloyalty.”- and “The Tenure Act was utilized as an expedient shortcut.”.

3 Counsel for the School Board stated: “I am not asking this Board in this proceeding or any other proceeding that I know of to pass upon the loyalty or disloyalty of this particular teacher. I am saying that the things which this teacher did in connection with his professional obligations were such as to result in incompetency sufficient to discharge the teacher under the School Code.”, and counsel for Mr. Beilan stated: “Mr. President, if you please, X have no intention of seeing this proceeding become a loyalty hearing. Mr. Blioads [counsel for the School Board] has stated that it is not. X agree with him completely . . Iiater in the hearing, counsel for Mr. Beilan also stated: “We have no intention of making a loyalty proceeding of this hearing. We agree with Mr. Bhoads and Mr. Weinrott [a member of the Board] who stated that the only issue is whether this particular man refused to answer certain particular questions and whether, as a matter of law, that amounts to a ground for dismissal, . . .”.