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BOARD PUBLIC EDUCATION v. INTILLE (06/30/60)

June 30, 1960

BOARD OF PUBLIC EDUCATION
v.
INTILLE, APPELLANT.



Appeals, Nos. 331, 332 and 352, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1954, No. 8410, in case of Board of Public Education School District of Philadelphia v. Angelina Intille; order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1954, No. 8411, in case of Same v. Thomas Deacon; and order of Court of Common Pleas No. 3, Dec. T., 1954, No. 8315, in case of Same v. Sadie T. Atkinson. Orders reversed. Proceedings on appeals from orders of Superintendent of Public Instruction terminating teachers' contracts of employment. Order entered dismissing appeal of Intille, opinion by REIMEL, J.; order entered dismissing appeal of Deacon, opinion per curiam; and order entered dismissing appeal of Atkinson, opinion by MILNER, P.J. Defendants appealed.

COUNSEL

Franklin Poul and A. Harry Levitan, for appellants.

C. Brewster Rhoads, with him Edward B. Soken, Sidney L. Wickenhaver, and Montgomery, McCracken, Walker & Rhoads, for appellee.

Alan Reeve Hunt and Julian E. Goldberg, for American Civil Liberties Union, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 401 Pa. Page 3]

OPINION BY MR. CHIEF JUSTICE JONES

The three appellants (Angelina Intille, Thomas Deacon and Sadie T. Atkinson) were teachers in the public schools of Philadelphia until the Spring of 1954 when they were dismissed by the Board of Public Education of the School District on a charge of "incompetency", preferred by Dr. Louis P. Hoyer, Superintendent of the Philadelphia public schools. In each case, the dismissal was based solely on the teacher's refusal to answer certain questions propounded by a Sub-committee (also known as the Velde Committee) of the Un-American Activities Committee of the House of Representatives*fn1 concerning the witness' alleged membership in and association with the Communist Party.

[ 401 Pa. Page 4]

In refusing to testify in such regard, each of the appellants expressly relied upon the privilege against self-incrimination guaranteed by the Fifth Amendment of the Federal Constitution.

All of the proceedings below, which resulted in the final orders of dismissal, now before us, were conducted separately throughout but, since the basic legal questions raised (both Federal and State), are the same in all three appeals, they will be disposed of in this one opinion.

The appellants contend that their dismissals, as teachers, (1) violated the due process clause of the Fourteenth Amendment, and (2) abridged their privilege against self-incrimination under the Fifth Amendment in further violation of the Fourteenth Amendment and of Article VI of the Federal Constitution.

There is also an additional question raised by the Board's contention that the appellants' plea of privilege against self-incrimination under the Fifth Amendment constituted incompetency within the intent of Pennsylvania's Public School Code of 1949.

As teachers under contract prescribed by the Public School Code of 1949, the appellants were entitled to tenure as professional employees and, by virtue of the same statutory authority, were subject to dismissal from their teaching positions only for cause upon notice, hearing and right of appeal.*fn2 One of the specified causes for removal, as prescribed by the School Code, is incompetency, which is the charge upon which Superintendent Hoyer suspended these teachers and recommended their dismissal to the Board of Education.*fn3

[ 401 Pa. Page 5]

The Superintendent based his finding of incompetency solely upon the fact that the appellants had refused to answer questions asked them by the Congressional Committee in reliance on their pleas of privilege under the Fifth Amendment against self-incrimination.

Subsequent testimony by the Superintendent, as well as the Board's charges based upon his recommendations of dismissal, ascribed as the basis for the finding of incompetency that the appellants had, upon an allowed plea of privilege, failed to cooperate with the Committee when they appeared before it pursuant to subpoena. It is, of course, not possible to separate refusal to answer from exercise of the privilege. Obviously, it is the latter which affords the basis for the refusal to answer. Nor was there statute of this State nor rule promulgated by the Commonwealth's Department of Public Instruction or the Philadelphia Board of Education which assumed to deal in any way with a professional employee's invocation of the privilege against self-incrimination under the Fifth Amendment. That the refusal to answer on the ground of the plea was, in truth, the exclusive basis for the Superintendent's conclusion that the appellants were incompetent, should be plain to any one, even the most querulous.

Within three days of the appearance of Mrs. Intille and Mrs. Atkinson before the Committee, and their refusal

[ 401 Pa. Page 6]

    to testify (two days in the case of Mr. Deacon), Superintendent Hoyer undertook to re-rate them as teachers and gave each a rating of "unsatisfactory" for the first time in the professional career of any one of them as a Philadelphia Public School Teacher.*fn4 In re-rating the appellants the Superintendent used an official rating card prepared and supplied by the State's Department of Public Instruction. Section 1123 of the School Code. The card contained a category of subjects according to which the qualifications of a teacher were to be judged. The Superintendent arrived at his conclusion that the appellants were incompetent by checking on the respective rating card for each of them three items listed, viz., (1) civic responsibility, (2) judgment, and (3) appreciation and ideals, in respect whereof the Superintendent then found each of them lacking because of their plea of the Fifth Amendment in refusing to answer some of the questions propounded by the Committee. In this way, the Superintendent, by equating the appellants' exercise of their constitutional privilege with poor judgment, deficiency of ideals and lack of civic responsibility, found them to be incompetent and forthwith suspended each of them and recommended their dismissal to the Board of Education on the ground of incompetency. At no time did any of the appellants refuse to answer any question asked them by their administrative superior.

The Board of Education, acting on the Superintendent's recommendations of dismissal, promptly charged each of the appellants with incompetency and fixed a separate time for a hearing thereon for each.*fn5

[ 401 Pa. Page 7]

Mrs. Atkinson, Mrs. Intille and Mr. Deacon attended their respective hearings before the Board. Counsel for the Board offered in evidence the respective transcripts of the hearing before the Committee at which the particular appellant had appeared and had refused to answer.*fn6 Dr. Hoyer testified at each of these hearings

[ 401 Pa. Page 8]

    before the Board as to his re-rating of the appellants, whereon he based his charge of incompetency which, in each instance, was bottomed on the teacher's refusal to answer questions of the Committee, as shown by the relevant transcript in evidence.

Neither Mrs. Atkinson nor Mrs. Intille were asked any questions by the Board or by the Superintendent at their hearings and did not testify; but Mrs. Intille, through counsel, offered to present evidence of her good reputation as a teacher and for civic responsibility and sound judgment. The offer was rejected by the Board and the evidence excluded "because the charge against her was based solely on her appearance before the Congressional Committee." (Board of Education's brief, p. 8). Such was the extent of the Board's case upon which it dismissed Mrs. Atkinson and Mrs. Intille from their positions as teachers of the Philadelphia School District on May 10, 1954, and May 28, 1954, respectively. Each of them thereupon appealed the dismissal to the Superintendent of Public Instruction of the Commonwealth, as allowed by Section 1131 of the School Code.

Deacon, likewise, was not interrogated by the Board or by the Superintendent at his hearing on the charge of incompetency but voluntarily offered himself as a witness and testified "freely" and "fully" concerning the matters which the Committee had inquired about but which he had then refused to answer. He testified

[ 401 Pa. Page 9]

    that he had been a member of the Communist Party at one time but had been dropped from it prior to 1945 for non-payment of dues and non-attendance at meetings; that he had joined the Communist Party in late 1938 or early 1939 but had never taken any Party oath or signed any membership card or application; that he had been attracted to the Communist Party because he was interested in idealistic causes and that, at the time he joined, the Communist Party was one of a number of organizations which were opposing fascism, anti-Semitism and segregation and were promoting trade unionism, fair employment practices and other liberal causes in which he was interested; that he had attended some meetings in connection with these causes but had never held any office in the Communist Party or served on any of its committees; that he had never heard during his membership in the Communist Party any advocacy of the violent overthrow of the government and that, if he had heard such a thing, he would have left the Party immediately and would have reported the matter to the civil authorities. He reiterated his testimony before the Committee that he was not a member of the Communist Party in 1952 when he took the Pennsylvania Loyalty Oath and testified further that he had had no connection with the Communist Party whatever for a period of seven or eight years prior to that time and no longer had any affection or sympathy for it.

As a result of Deacon's hearing, the Board, on June 29, 1954, dismissed him as a teacher of the Philadelphia Public School District on the ground of incompetency. He forthwith appealed the order of dismissal to the Superintendent of Public Instruction of the Commonwealth. Section 1131 of the School Code.

On January 17, 1955, the Superintendent of Public Instruction dismissed all three appeals, viz., Mrs. Atkinson's,

[ 401 Pa. Page 10]

Mrs. Intille's and Mr. Deacon's, and affirmed the action of the Board of Education in dismissing them as teachers of the Philadelphia Public School District on the ground of incompetency. Separate appeals were taken by the appellants from the respective orders of the Superintendent of Public Instruction to the several courts of common pleas of Philadelphia County as authorized by Section 1132 of the School Code. The final orders of the courts below, sustaining the action of the Superintendent of Public Instruction, are the subjects of the present appeals to this court.

The three co-ordinate courts below each sustained the order of dismissal before it in the mistaken belief that the question involved was ruled adversely to the appellant's contention by this court's decision in Board of Public Education School District of Philadelphia v. Beilan, 386 Pa. 82, 125 A.2d 327, aff'd 357 U.S. 399. The error in that conclusion is patent. What the Board of Education sought to accomplish in these cases goes far beyond anything that was either decided or implied by the opinion for this court in Beilan's case. His adjudged incompetency resided exclusively in the fact that he had refused to answer questions of his administrative superior (Superintendent Hoyer) concerning matters deemed to have bearing on his qualifications as a teacher in the public schools of Philadelphia, and not that he had refused to answer questions of a Congressional Committee. That such was the ratio decidendi in the Beilan case is not open to question. Speaking for this court, Mr. Justice CHIDSEY said, "The secretiveness [of Beilan] 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." (Emphasis supplied). And, the Supreme

[ 401 Pa. Page 11]

Court of the United States, in affirming, recognized that such was, indeed, the rationale of this court's decision, saying in that regard, - "He [Beilan] did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher." (Emphasis supplied). Neither in this court nor in the Supreme Court was the fact that Beilan had pleaded the Fifth Amendment before the Committee availed of as ground for the decision.

The appellee Board is well aware of the distinction between Beilan and the present cases. In the Board's brief on these appeals, it is stated (p. 16) that "The present cases differ from the Beilan case in that the teacher's refusal to answer questions occurred before a Congressional Committee rather than before his administrative superior." The Board also recognizes (Brief p. 16) that this court did not pass upon Beilan's refusal to answer the Congressional Committee as a ground for his dismissal and that "... the Beilan case in the Supreme Court of the United States did not involve a dismissal where there was a claim of privilege against self-incrimination ...". (Brief p. 30.)

In the cases now before us, none of the appellants refused to answer any question propounded by Superintendent Hoyer or by the Board of Education touching his or her qualifications as a teacher or their conduct as citizens or in any other capacity. As already stated, neither Mrs. Atkinson, Mrs. Intille nor Mr. Deacon was asked any questions by the Superintendent or by the Board except when Deacon, having voluntarily offered himself as a witness at his hearing before the Board, "answered every question which he was asked" and "freely", as the brief for the Board of Education concedes (pp. 40 and 41).

[ 401 Pa. Page 12]

It stands out too clearly for any misunderstanding that the only thing for which the appellants were dismissed by the Board was that they had refused to answer certain questions of a Congressional Committee upon a proper plea of privilege against self-incrimination under the Fifth Amendment. This, the brief for the Board of Education acknowledges where it states (p. 3), "The charges were based on the refusal of the appellants to answer questions concerning their alleged membership in and association with the Communist Party under a plea of the privilege of the Fifth Amendment of the Federal Constitution during appearances before the Committee on Un-American Activities of the House of Representatives, Congress of the United States." Confirmation of the real basis for the charges is to be found in the Board's rejection of Mrs. Intille's offer of proof of her good reputation "because the charge against her was based solely on her appearance before the Congressional Committee" and the Board's further acknowledgment (Brief p. 41), that "The charge against Deacon was that he refused to answer the [Un-American Activities] Committee, and [that] this was the incompetency", viz., the incompetency for which he was dismissed as a teacher.

That the action of the Board in dismissing the appellants, as teachers with tenure, upon the asserted ground of incompetency was a penalty inflicted upon them by State action for having invoked, in a strictly federal proceeding, the privilege against self-incrimination under the Fifth Amendment, is too plain to be obscured by attenuated reasoning. Such being the unmistakable legal situation revealed by each of these appeals, application of the principle recognized by the Supreme Court in Slochower v. Board of Higher Education of New York City, 350 U.S. 551, is manifestly indicated.

[ 401 Pa. Page 13]

Slochower, an associate professor in a college operated by the City of New York, was summarily discharged because, while testifying before the Internal Security Sub-committee of the United States Senate, he refused to answer questions concerning his alleged membership in the Communist Party in years past on a plea of privilege against self-incrimination under the Fifth Amendment. The particular Section of the New York City Charter under which Professor Slochower was discharged provided that, whenever an employee of the City makes use of the privilege against self-incrimination to refuse answering 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 ..." etc. Slochower was entitled to tenure under New York's Education Law and could be discharged only for cause after notice and hearing with right of appeal. The Supreme Court held that his summary dismissal as a teacher denied him due process in violation of the Fourteenth Amendment and, accordingly, reversed his discharge.

Counsel for the appellee in the cases now before us argues that all that the Slochower case decided was that he had been denied procedural due process. But, that was not all that the Slochower case adjudicated, as we read it. True enough, his summary dismissal without notice and hearing denied him procedural rights protected by the due process requirement of the Fourteenth Amendment; and it is also true that the Supreme Court's judgment of reversal remanded the case "for further proceedings not inconsistent with this opinion." It is clear, however, that the open order of remand was required in the circumstances. The Supreme Court recognized that "The State has broad powers in the selection and discharge of its employees and it may be that proper inquiry would show Slochower's

[ 401 Pa. Page 14]

    continued employment to be inconsistent with a real interest of the State." Necessarily, therefore, what might subsequently be developed at a proper hearing was not to be foreclosed by the attendant order reversing Slochower's dismissal, not only because of the manner in which, but also the reason for which his discharge had been effected. The Slochower case decided that "to discharge an employee merely because he relied upon the Fifth Amendment plea of self-incrimination to avoid answering questions which he would be otherwise required to answer" constituted a denial of substantive due process. Such was, indeed, the appraisal of the dissenting justices as to the intended scope and effect of the majority's holding in the Slochower case (see p. 561 of 350 U.S.).And, that is what we take to have been the ruling in Slochower on the merits of the ground assigned by the Board for summarily dismissing him.

In speaking for the majority in the Slochower case, Mr. Justice CLARK, after condemning "the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment" and, after recognizing that "The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury", declared (p. 559) that, "... the Board seized upon [Slochower's] claim of privilege before the federal committee and converted it through the use of § 903 [of the New York City Charter] into a conclusive presumption of guilt", and then concluded by holding that "Since no inference of guilt was possible from the claim before the federal committee, the discharge falls of its own weight as wholly without support. There has not been the 'protection of the individual against arbitrary action' which Mr. Justice CARDOZO characterized

[ 401 Pa. Page 15]

    as the very essence of due process. Ohio Bell Telephone Co. v. Commission, 301 U.S. 292, 302."

Counsel for the Board urges upon us that, unlike in Slochower, here the condemned teachers were given hearings. The distinction is plainly immaterial. Hearing or no hearing, the dismissals in the instant cases were for the same invalid reason for which Slochower had been discharged, namely, the refusal to answer upon a plea of privilege under the Fifth Amendment before the Congressional Committee. Incidentally, the hearings given the appellants did not meet the basic requirements of procedural due process; they were not "full" hearings. But, we make no point of that presently except to note, in passing, that the Board's evident anxiety to keep from appearing to be finding the appellants guilty of disloyalty by inference, drawn from their refusal to answer the Congressional Committee's questions, had so submerged the alleged deficiency, with which the appellants were actually charged (and for which they were dismissed), viz., incompetency, that the Board failed to realize at Mrs. Intille's hearing that the proof she offered, which was rejected as irrelevant, had a direct bearing on the question of her competency. Also, counsel for the Board objected at Deacon's hearing to the reception of any testimony from him, including even an explanation of how he had come to join the Communist Party at an earlier time. The Board, however, overruled the objection and permitted Deacon to testify.

Deacon might as well have not volunteered his unrestrained revelation of his buried aberration of the past. Although he expressed regret and contrition for his earlier Communist Party association, and notwithstanding his background of twenty-four years of continuous "satisfactory" teaching service in the Philadelphia Public Schools, he was dismissed although this

[ 401 Pa. Page 16]

    court's manifest intendment in the Beilan case (p. 95), was that a locus penitentiae must be recognized and honored "where a teacher has been dismissed who has entirely discarded past subversive affiliations and has abided by a loyalty oath taken in good faith." Not one word of evidence, oral or documentary, was introduced at the Board hearing to controvert Deacon's testimony that he had discarded past subversive affiliations some nine or ten years before and had abided in good faith the obligations of the loyalty oath which he took in 1952.

It is our opinion that the cases before us are squarely ruled in the appellants' favor by the Supreme Court's decision in the Slochower case and that, consequently, the orders of dismissal, which were based solely on the appellants' refusal to answer upon a plea of privilege against self-incrimination under the Fifth Amendment before a Congressional Committee must be reversed as constituting State action denying them the due process guaranteed by the Fourteenth Amendment.

The Board argues that Slochower is distinguishable from the cases before us, citing as illustrative of the suggested distinction the reasoning of the California District Court of Appeals in Nelson v. County of Los Angeles, 163 Cal.App.2d 607, 329 P.2d 978, and Globe v. County of Los Angeles, 163 Cal.App.2d 595, 329 P.2d 971. Nelson was a permanent social worker employed by the County's Department of Charities, while Globe was a temporary employee of the same department. Both were subpoenaed to and did appear before a Sub-committee of the House Un-American Activities Committee but refused to answer certain questions asked them concerning subversion. They had been ordered by the County Board of Supervisors to answer any questions asked by the Sub-committee, relating to subversive activity, pursuant to § 1028.1 of the California

[ 401 Pa. Page 17]

Code which made it the duty of any public employee to give testimony relating to any such activity on pain of discharge "in the manner provided by law." The County discharged both of them on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, who had tenure, requested and was given a hearing before the Civil Service Commission, the result of which was the confirmation of his discharge. Globe was denied a hearing because, as a temporary employee, he was not entitled to one under the Civil Service rules, which he did not dispute. On appeal the discharges were affirmed by the California District Court of Appeal, as above cited. Both Nelson and Globe petitioned the Supreme Court for certiorari which was granted: 360 U.S. 928. In the Supreme Court, each contended that his discharge was based upon his invocation before the Sub-committee of his constitutional rights under the First and Fifth Amendments. A judgment of affirmance was entered by the Supreme Court on February 29, 1960, in Nelson's case by an evenly divided court without discussion. At the same time, the Supreme Court handed down a five to three decision affirming Globe's discharge, 362 U.S. 1.

We do not consider the decision in the Globe case to be controlling here. Several distinctions are to be noted which may have been persuasive with the majority in the Globe decision. For example, Globe, as a temporary employee without tenure, was dischargeable for any reason at any time, and without notice or hearing. His letter of dismissal ascribed his discharge to insubordination for failure to comply with a specific order. In answering Globe's contention that his discharge was based on his invocation before the Committee of his constitutional privileges, Mr. Justice CLARK, speaking for the majority said, "But the record does not support even an inference in this regard, and

[ 401 Pa. Page 18]

    both the order and the statute upon which the discharge was based avoided it." Also, the court expressly distinguished Globe from Slochower on the specific ground that California had made a "choice of securing such information by means of testimony before a federal body." No such choice has ever been, nor could be, claimed under Pennsylvania's Public School Code. The "'built-in' inference of guilt, derived solely from a Fifth Amendment claim", which the Supreme Court said in Globe was present in the New York statute in Slochower, is exactly what the Board of Education sought to "build-in" in the present cases without the activation of statute.

We conclude, therefore, that the dismissal of the appellant teachers by the Board of Education for having refused to testify in a Congressional hearing, on a plea of the privilege against self-incrimination under the Fifth Amendment, denied them due process contrary to the Fourteenth Amendment of the Constitution of the United States.

We are also of opinion that the appellants' dismissals, as teachers, because they refused to answer certain of the Committee's questions on a plea of the Fifth Amendment's protection against self-incrimination, constituted an abridgment by State action of a privilege of the appellants' National citizenship available to them in a Federal proceeding. In so saying, we are, of course, not unmindful that the Supreme Court has directly ruled that some of the privileges guaranteed the individual citizen by the Bill of Rights are not protected inviolate by the Fourteenth Amendment against State action. Specifically, the privilege under the Fifth Amendment not to be compelled to incriminate one's self does not preclude a State from compelling self-incriminatory testimony in State trials:

[ 401 Pa. Page 19]

Court.*fn7 In the opinion for the court, Mr. Justice CARDOZO noted with contextually evident approval that "This court has said that, in prosecutions by a state, the exemption [i.e., against self-incrimination] will fail if the state elects to end it", citing Twining v. New Jersey, supra.

It is clear from the foregoing that the privilege against self-incrimination under the Fifth Amendment, which is an attribute of National citizenship, is not protected by the Fourteenth Amendment against State action for local uses and purposes incident to State citizenship (both National and State citizenship being recognized by the Fourteenth Amendment as coexisting in the same person). Consequently, while the State may restrict the privilege against self-incrimination in State actions without violating the Fourteenth Amendment, it may not, as was done in the cases now before us, impose a penalty upon a citizen's pleading in a Federal proceeding his privilege against self-incrimination under the Fifth Amendment. To hold otherwise would be to render the Constitution of the United States less than "the supreme Law of the Land" which Article VI declares it to be, and would allow a State to do what the United States itself cannot constitutionally do, namely, nullify the privileges of the Bill of Rights in Federal proceedings. As is well known, the rights conferred by Articles I to VIII, inclusive, which embrace what is popularly known as the Bill of Rights, were originally effective against the Federal government alone. The fact that some of such privileges and immunities

[ 401 Pa. Page 21]

    have since been made effective against the States also, "by absorption" through the Fourteenth Amendment, in no way lessens or impairs the enduring effectiveness against the Federal government of the privileges and immunities of the Bill of Rights. The Adamson opinion so recognized where it observed (p. 53) that the Fourteenth Amendment left "... to the states the responsibility of dealing with the privileges and immunities of their citizens except those inherent in national citizenship." (Emphasis supplied). What could be more inherent in National citizenship than the right to plead the Fifth Amendment against self-incrimination in a Federal proceeding?

It follows from what we have said that the appellants' dismissals by the Board of Education, because they refused to answer certain questions of the Congressional Committee on a plea of the Fifth Amendment's protection against self-incrimination, deprived them of liberty and property without due process of law and, at the same time, worked abridgment by State action of the same constitutional privilege, all in violation of the Fourteenth Amendment.

One further matter calls for consideration.

For a public school teacher to plead a constitutional privilege, in appropriate circumstances, does not prove the teacher's incompetency within the intended scope of that term as used in our Public School Code; the plea is not even relevant as evidence of incompetency. Just as remaining mute, upon a plea of the Fifth Amendment, carries no implication of guilt of the matter inquired about in the unanswered questions (see Slochower v. Board of Higher Education of New York City, supra) so also does the plea not carry an implication of the pleader's incompetency. Nor is it of any materiality to a question of the pleader's competency whether or not the propriety of the plea against

[ 401 Pa. Page 22]

    self-incrimination is conceded or rejected by the inquiring body so long as the plea is made in good faith and is not plainly frivolous. There is no prerequisite to the exercise of the privilege against self-incrimination that the pleader must first establish affirmatively his good faith and lack of frivolity in entering the plea. The appellants' pleas of the Fifth Amendment did not prove their incompetency within the meaning of the Public School Code and, since their refusal to answer the Committee's questions, in reliance on the Fifth Amendment privilege, was all that was proven against them, the Board failed to make out a case for their dismissal.

But, the Board presently advances the idea that a teacher who refuses to answer a Congressional Committee's questions, implying possible subversive affiliations on the part of the witness, is incompetent within the meaning of the tenure provisions of our Public School Code. Such a contention transgresses what was thought to have been decided in Beilan, where we were assured that no question of loyalty was in any way involved.*fn8 If the refusal to answer a particular question is to be made a basis for the discharge of a professional employee, the question should, obviously, have for its purpose the eliciting of information concerning some matter material to the fitness of the employee to continue at work. This is so whether the question propounded be by a Congressional Committee or by the Board of Education itself. And, if the only material

[ 401 Pa. Page 23]

    matter to which the question relates is possible disloyalty or subversion on the part of the employee, then any proceeding looking to his dismissal for refusal to answer questions relating to his possible disloyal or subversive activities or affiliations must be brought under the Pennsylvania Loyalty Act of December 22, 1951, P.L. 1726, 65 PS § 211 et seq. In a proceeding under that statute a teacher may be discharged if it is determined "by a fair preponderance of the evidence" that he is a disloyal or subversive person; and "If the appointing authority shall be comprised of three or more members, a vote of two-thirds of the members shall be necessary in order to discharge a person." See Section 7 of the Act (65 PS § 217). What the Board of Education has attempted to do in these cases is to avoid the requirement of the Pennsylvania Loyalty Act that disloyalty or subversion, as a ground for the discharge of a public school teacher, must be proven "by a fair preponderance of the evidence." The Board's action evidences a belief that it has found a way to dismiss, without any evidence at all, teachers whom it suspects of disloyalty or subversion. Anything in the Beilan case to the contrary is herewith overruled for the future. In searching out and eliminating disloyalty or subversion among teachers in public schools the procedures of the applicable statute enacted for that purpose must be faithfully pursued, and violence must no longer be done the meaning of the word "incompetency" in order to circumvent the procedures of the Loyalty Act.

Mr. Justice BELL and Mr. Justice EAGEN concur in the result.

Disposition

The orders of the courts below, now here on appeal at Numbers 331, 332 and 352, are severally reversed, and the records remanded for further ...


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