Appeal, No. 97, Jan. T., 1956, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1954, No. 4742, in case of Board of Public Education, School District of Philadelphia v. Herman A. Beilan. Order reversed; reargument refused October 3, 1956.
C. Brewster Rhoads, with him Sidney L. Wickenhaver and Edward B. Soken, for appellant.
,Thomas D McBride, with him John Rogers Carroll, for appellee.
Thomas A. Masterson and Julian E. Goldberg, filed a brief for the American Civil Liberties Union, Greater Philadelphia Branch, under Rule 46.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
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, 1953. 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 answer 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 Superintendant's office and stated the 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 advised 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 November 18, 1953 Beilan testified before a subcommittee of the House Committee on Un-American Activities of the House of Representative 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 Communist
Party, Mr. Beilan pleaded the privilege of the Fifth Amendment of the Federal Constitution. Counsel for the Congressional Committee stated the 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 8 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 member 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 U.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.*fn1 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,
, P.L. 30, 246 PS § 11-1122, with incompetency and persistent and wilful violation of the school laws. The charge of incompetency 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.*fn2 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 his 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.*fn3 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 incompetency 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". He School Code of 1949 added as an additional ground for "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 16 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 in q uiry as to his fitness to be a teacher. The Loyalty Act preempted the filed 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; specify., 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 him 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 had 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 to 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 ...