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ALBERT APPEAL (11/25/52)

November 25, 1952

ALBERT APPEAL


Appeal, No. 77, March T., 1952, from decree of Court of Common Pleas of Allegheny County, April T., 1951, No. 1689, in Appeal of Dorothy Albert from the decision, order and ruling of Dr. Francis B. Haas, Superintendent of Public Instruction. Decree affirmed.

COUNSEL

Osmond K. Fraenkel, of New York, with him William Allen Rahill and Thomas D. McBride, for appellant.

Mortimer B. Lesher, Solicitor, with him Niles Anderson, Assistant Solicitor and Oscar G. Peterson, for Board of Public Education of School District of Pittsburgh, appellee.

Robert L. Kunzig, Deputy Attorney General, with him Robert E. Woodside, Attorney General, for Commonwealth of Pennsylvania, intervenor, appellee.

A Harry Levitan and Witt and Cammer, of New York, for Teachers Union, Local 555 and Local 556.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 372 Pa. Page 15]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Miss Dorothy Albert, a professional employe of the School District of Pittsburgh, taught English at the Taylor-Allderdice High School; she had been a teacher for approximately eighteen years. Dr. Earl A. Dimmick, Superintendent of Schools of Pittsburgh, preferred charges against her, alleging that she was a Communist; he requested that her contract of employment be terminated for "advocation of or participating in un-American or subversive doctrines" in violation of section 1122 of the Public School Code of 1949, P.L. 30. The Board of Public Education held a formal hearing at which extensive testimony was taken; Miss

[ 372 Pa. Page 16]

Albert was represented by counsel but she herself did not testify, nor did she present any testimony by other witnesses. As a result of the hearing the Board entered an order terminating her contract as a professional employe and discharging her as a teacher. She appealed to the Superintendent of Public Instruction, who, after hearing and argument, sustained the action of the Board. She then appealed to the Court of Common Pleas of Allegheny County but did not request in that court a hearing do novo to which she would have been entitled under section 1132(b) of the School Code had she demanded it. The court affirmed the action of the Superintendent and dismissed her appeal. From that order she now appeals to this court.

Section 1122 of the School Code enumerates the causes for the termination of a contract with a professional employe, and among them is listed "advocation of or participating in un-American or subversive doctrines". The Act of July 28, 1941, P.L. 530, had forbidden the employment in any capacity, by any agency of the Commonwealth or any county, city, borough, township or school district, of any person who thereafter should advocate or participate " by an overt act or acts in un-American or subversive doctrines"; any person so employed was to be dismissed in the same manner as provided by law for dismissals for other causes. The School Code omitted the words " by an overt act or acts ", thus apparently demanding a more rigorous standard of loyalty in respect to teachers than for other public employes. Appellant contended in the court below that the words "un-American or subversive doctrines" are vague an indefinite and that therefore this provision of the Code is unconstitutional and void. However, their connotation is no more uncertain than that of the other causes for termination of a contract with a professional employe enumerated

[ 372 Pa. Page 17]

    in this same section of the Code, as, for example, "immorality", "incompetency", "cruelty", etc., for which causes dismissal of teachers have been frequently upheld by our courts. Exact definitions of such abstract terms are obviously quite impossible, but, as a practical matter, their application to specific situations does not involve any real difficulty. The Act of 1941, which was not repealed or impaired by the School Code, gave a general definition of the phrase as meaning "doctrines which teach or advocate the overthrow of the government of the United States or of the Commonwealth of Pennsylvania by revolution or the changing of the form of government of the United States or of the government of Pennsylvania by means not provided for in the Constitution of the United States or in the Constitution of the Commonwealth of Pennsylvania".*fn1 We conclude that there is no such ambiguity or obscurity in the terminology of section 1122 of the Code as would render it inoperative and incapable of judicial enforcement.

There is no question of the right of free speech involved in this case. Miss Albert is not being penalized in her capacity as a private citizen because of any political, economic or social views she may entertain or any expression she may care to give to those

[ 372 Pa. Page 18]

    views. The concern here is with her rights as a teacher, and the legislature can certainly prescribe qualifications for teachers in the public schools with respect not only to their academic attainments but also to their moral characters and their loyalty to the state and federal governments. Judge (later Mr. Justice) HOLMES, in a characteristically epigrammatic phrase, said in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." To the same effect, Mr. Justice MINTON, speaking for the United States Supreme Court, said in Adler v. Board of Education of the City of New York, 342 U.S. 485, 492: "It is clear that such persons [employed or seeking employment in the public schools] have the right under our law to assemble, speak, think and believe as they will.... It is equally clear that they have no right to work for the State in the school system on their own terms.... If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not."

The Constitution of the Commonwealth, Article 10, Section 1, provides that "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools." Certainly our public school system is the most vital feature of our governmental and democratic system. In order to have such a "thorough and efficient system" those who teach in the public schools must be persons not only of learning and ability, of character and integrity, but they must be devoted to our country, its institutions and the basic principles upon which it was founded and hopefully will ever rest. Section 1511 of the School Code

[ 372 Pa. Page 19]

    provides that in every elementary public and private school there shall be taught "civics, including loyalty to the State and National Government." How can such loyalty be taught if the teacher herself be disloyal? As was said in Thorp v. Board of Trustees of Schools for Industrial Education of Newark, 6 N.J. 498, 514, 79 A.2d 462, 470; "The school system affords the opportunity and means for subtle infiltration.... A teacher who is bereft of the essential quality of loyalty and devotion to his government and the fundamentals of our democratic society is lacking in a basic qualification for teaching." Children respect and look for guidance to their school teachers second only to their parents; their immature minds are influenced not only by what they are actually taught in the classroom but also by the personality of their teacher; the impressions they receive in school are bound to color their adult lives and to determine for them, as they advance into manhood and womanhood, whether they emerge as patriotic or as unfaithful citizens. In short, it is essential, in order to protect our children from treacherous influences, that persons who advocate or participate in subversive doctrines should not be employed, or if employed should not be retained, as teachers in our public schools, and any teacher dismissed for such a reason cannot properly claim that any constitutional or legal right is thereby violated.

According to the testimony before the Board of Public Education Miss Albert was, unquestionably, a member of the Communist Party. Her chief complaint, however, on this appeal, is that the Board not only took judicial notice of the fact that the Communist Party advocates the overthrow of the United States government by force and violence, but it refused to allow her to present testimony to the contrary. This court has definitely decided that judicial notice may

[ 372 Pa. Page 20]

    be taken of the fact that the Communist Party is a subversive organization which conspires to teach and to advocate the overthrow of the government of the United States by force and violence: Milasinovich v. The Serbian Progressive Club, Inc., 369 Pa. 26, 29, 84 A.2d 571, 573; Commonwealth v. Truitt, 369 Pa. 72, 81, 85 A.2d 425, 429; Matson v. Margiotti, 371 pa. 188, 193, 88 A.2d 892, 895; Pawell v. Unemployment Compensation Board of Review, 146 Pa. Superior Ct. 147, 150, 151, 22 A.2d 43, 45 (allocatur refused 146 Pa. Superior Ct. xxiii); (see also Schneiderman v. United States, 320 U.S. 118, 148, note 31). The doctrine of judicial notice is intended to avoid the necessity for the formal introduction of evidence in certain cases when there is no real need for it, -- where a fact is so well established as to be a matter of common knowledge. That the Communist Party advocates the use of violence to overturn the governments of non-Communist countries, and especially that of the United States, has been proclaimed in legislative statutes,*fn2 and can fairly be said to be a matter of general notoriety. It would seem almost an absurdity of legal procedure to continue to submit to various juries in individual cases a question so readily and authoritatively determinable from the mere persual of the writings

[ 372 Pa. Page 21]

    of the acknowledged founders and protagonists of the Communist movement -- Marx, Engels, Lenin, Stalin and others*fn3 -- which teach the doctrine of a proletarian revolution, the dictatorship of the proletariat, and te overthrow of the capitalistic system and "bourgeois democracy", -- to be consummated by the forcible overthrow of the governmental organizations upon which alleged capitalist exploitation depends. Both general knowledge and accepted history stamp as indubitably true the statements contained in the opinion of Mr. Justice JACKSON in American Communications Assn., C.I.O. v. Douds, 339 U.S. 382, 425, 427, 429, 431, as follows: "The goal of the Communist Party is to seize powers of government by and for a minority rather than to acquire power through the vote of a free electorate.... The Communist program only begins with seizure of government, which then becomes a means to impose upon society an organization on principles fundamentally opposed to those presupposed by our Constitution. It purposes forcibly to recast our whole social and political structure after the Muscovite model of police-state dictatorship. It rejects the entire religious and cultural heritage of Western civilization, as well as the American economic and political systems.... The Communist Party alone among American parties past or present is dominated and controlled by a foreign government. It is a satrap party which, to the threat of civil disorder, adds the threat of betrayal into alien hands.... Violent and undemocratic means are the calculated and indispensable methods to attain the Communist Party's goal. It would be incredible naivete to expect the American branch of this movement to forego the only methods by which a Communist

[ 372 Pa. Page 22]

    by force and violence, she should not be held to have advocated or participated in that subversive doctrine because guilt, being personal, is not to be adjudged merely on the basis of association since membership in a political party or other organization does not necessarily mean that one subscribes unqualifiedly to all its platform or asserted principles (see Schneiderman v. United States, 320 U.S. 118, 136); therefore there must be proof that appellant was aware of the Party's illegal designs, -- that she had knowledge of its revolutionary purpose. Assuming this to be true, it is obvious that awareness, being a condition of the mind, can be proved to exist only by reasonable inference from objective facts and circumstances. There was sufficient testimony at the hearing before the Board of Public Education to convince any reasonable mind that Miss Albert must have been fully acquainted with the policies and purposes of the Communist Party to which she belonged. A witness, Matthew Cvetic, testified that he knew appellant for about four or five years, that he met her at meetings of the Communist Party which were attended by leading party functionaries, members of the executive committee of the Party, and members of the district committee. Some of these meetings were called for the purpose of "hammering out the 'Communist Party line'", no persons being invited and allowed to enter unless they were members of the Communist Party. During the four or five year period the witness saw her at meetings of the Party or of one of the Communist-front organizations possibly 25 or 30 times. He testified that she participated in the discussions and voted on the reports of the district organizers; such reports were always approved by the members, all of them voting in favor of the Party line. He testified further that the Party had an educational program where books by Marx, Lenin and Stalin

[ 372 Pa. Page 24]

    were used, and he saw appellant with books by Marx and Engels in her hand; in one class a book used was "Theory and Practice of the Communist Party"; reading material included the Communist Manifesto and Lenin's "State and Revolution"; he testified that appellant was present at meetings where these books were discussed. There was placed in evidence at the hearing a sample membership card of the Party which set forth the rights and duties of Party members as follows: "To attend club meetings, read the Party press and literature, pay dues regularly and be active on behalf of the program and policies of the Party. To participate in working out all policies and tasks of the club and to regularly examine the execution of such policies. To strive the master the program and policies of the Party, the principles of Marxism-Leninism." Having in mind that the Communist Party is a highly disciplined and rigidly controlled organization which tolerates no dissension from the policies laid down by its leadership; that appellant regularly attended and participated in meetings of high communist functionaries over a period of several years and was therefore not the merely casual member who joins an organization innocently and in ignorance of its policies and purposes and quickly resigns upon realizing its true import; having in mind further that appellant had been a school teacher for 18 years and was therefore presumably a woman of intelligence and education; that she chose to remain silent when she might have asserted her right to testify in the court below and present there evidence to refute the charges against her; and, finally, that the very secrecy, furtiveness and clandestine nature of the meetings*fn4 must have put her

[ 372 Pa. Page 25]

    on notice that the plans and policies were illegal; -- having all those things in mind it would certainly strain the limits of credulity to believe that she did not know what she was doing and did not knowingly and consciously advocate and participate in the subversive doctrines of the Communist Party organization. To hold that in order to prove her personal complicity it would be necessary to produce affirmative evidence of what she actually saw, heard and discussed at any particular meeting of the Party would be to make utterly impossible the enforcement of the section of the School Code in question -- in effect to nullify it -- and thereby to permit the infiltration into the school system of disloyal teachers with free rein to exercise their baneful and sinister influence upon the children committed to their care.

The order of the court below dismissing the appeal of Dorothy Albert from the order of the Superintendent of Public Instruction is affirmed; appellant to pay the costs.

Disposition

The order of the court below dismissing the appeal of Dorothy Albert from the order of the Superintendent of Public Instruction is affirmed; appellant to pay the costs.

[ 372 Pa. Page 26]

CONCURRING OPINION BY MR. JUSTICE MUSMANNO

The Pittsburgh Chapter of the Civil Rights Congress has filed a brief amicus curiae characterizing the proceedings against Dorothy Albert as a "witch hunt," a device to control thought and a means of suppressing a political party -- all accomplished in a period of "hysteria and passion."

The term "witch hunt" in this connection represents loose thinking and irresponsible language because we know that witches have no existence except in a disordered imagination, and we know also that Communism is a reality with potential dangers to mankind that imagination cannot exaggerate.

Dorothy Albert was not charged with any supernatural offense. Her offense was a very earthy one. It was nothing less than advocating, through the Communist Party of which she is or was a member, the overthrowing of our government not by broomsticks but by bomb, bullet and bayonet, as exemplified by Communist ...


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