Appeal, No. 350, Jan. T., 1959, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1954, No. 8104, in case of Board of Public Education School District of Philadelphia v. Goldie Watson. Order reversed. Proceedings on appeal from order of Superintendent of Public Instruction terminating contract of employment. Opinion filed dismissing appeal, and order entered, opinion by MILNER, P.J. Defendant appealed.
Philip Dorfman, with him Dorfman, Pechner, Sacks & Dorfman, for appellant.
C. Brewster Rhoads, with him Edward B. Soken, Sidney L. Wickenhaver, and Montgomery, McCracken, Walker & Rhoads, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The only difference between this case and Board of Public Education v. Intille, Deacon and Atkinson, P. 1, ante, is that, here, the appellant, Goldie Watson, a Philadelphia public school teacher, relied upon the constitutional guarantees of the First Amendment, instead of the Fifth, in justification of her refusal to answer certain questions propounded by a Sub-committee (known as the Velde Committee) of the Un-American Activities Committee of the House of Representatives,*fn1 concerning membership in and association with the Communist Party. Except for the indicated difference in plea in refusing to answer the Committee's inquiries, the material facts of this case are substantially the same as those in the cases of Intille, Deacon and Atkinson, cit., supra.
Mrs. Watson became a regular teacher in the Philadelphia public schools in 1931 with tenure, after 1937, under the Public School Code. On February 17, 1954, pursuant to a subpoena, she appeared before the Congressional Committee. She gave the Committee her name, address and a resume of her educational background and employment record as a teacher. When
asked whether she had ever been a member of the Communist Party and similar questions relating to past Communist affiliations on her part, she declined to answer and explained that such questions in her view were "in violation of her constitutional rights and that she particularly relied on the First Amendment." Within one day (viz., on February 18, 1954) Dr. Louis P. Hoyer, Superintendent of the Philadelphia Public Schools, re-rated Mrs. Watson "unsatisfactory" as a professional employee of the School District and suspended her from her position as a teacher in an elementary school. Dr. Hoyer sent her a letter informing her that she had been rated "unsatisfactory" as a result of her refusal to answer questions propounded by the Committee. On March 9, 1954, the Board preferred charges of incompetency against Mrs. Watson as a ground for her dismissal on Dr. Hoyer's recommendation.
A hearing before the Board of Education on the charges was held on June 4, 1954, at which time a transcript of Mrs. Watson's testimony before the Committee, including the unanswered interrogations made of her, was introduced in evidence. Dr. Hoyer stated at the hearing that he had rated Mrs. Watson "unsatisfactory" on the basis of an official rating card prepared and distributed by the Department of Public Instruction of the Commonwealth and that, as the basis of his re-rating, he had checked three items listed on the card in respect of which he had found her deficient, namely, (1) civic responsibility, (2) judgment, and (3) appreciation and ideals. He testified that in his opinion Mrs. Watson, by refusing to answer questions of the Committee concerning her subscription to subversive doctrines, had exhibited improper civic responsibility, poor judgment and a lack of appreciation and ideals. He also testified, however, that school records
showed that Mrs. Watson had been a competent teacher during all of the twenty-three years she had continuously taught in the Philadelphia public schools.
No other evidence to support the charge of incompetency against Mrs. Watson was offered at the hearing. Nor was she asked any questions by the Board or the Superintendent at the hearing until she offered to and did testify. She explained that she had refused to answer questions at the Committee hearing because she felt that the Committee was conducting an inquisition with no legitimate legislative purpose, that the members of the Committee were using the hearings for purposes of personal political aggrandizement, that the Committee had no right to inquire into her associations and beliefs, and that her freedoms of speech and association guaranteed by the First Amendment would be violated if she were compelled to answer the Committee's questions. Both Mrs. Watson and Dr. Hoyer testified that she had spoken frankly to him in his office in October of 1952 concerning her loyalty and her membership in a number of organizations and that, at the conclusion of the interview, Dr. Hoyer had told her that he was satisfied that she had answered all of his questions satisfactorily.
On June 29, 1954, the Board dismissed Mrs. Watson from her position as a teacher on the charge of incompetency for her failure to answer questions of the Committee. She appealed from the action of the Board to the Superintendent of Public Instruction of the Commonwealth who, on January 17, 1955, dismissed her appeal and affirmed the action of the Board.
Mrs. Watson then appealed to the Court of Common Pleas of Philadelphia County from the Superintendent's order affirming her dismissal. The court dismissed her appeal and affirmed the order of the Superintendent of Public Instruction citing as the basis for
its action the reasons set forth in its opinion in Board of Public Education School District of Philadelphia v. Atkinson, Phila. C.P. No. 3, December Term 1954, No. 8315. The reasons so assigned in the Atkinson case were (1) that a refusal to answer questions propounded by the Congressional Committee relating to alleged Communist affiliations of the witness renders a teacher "incompetent" within the intent of the Public School Code, and (2) that a discharge on the ground of incompetency for refusal to answer the Committee's questions does not violate a teacher's rights under the Federal Constitution.
So far as the ground assigned for Mrs. Watson's dismissal as a public school teacher and the procedure by which it was effected are concerned, this case is not one bit different from the Intille, Deacon and Atkinson cases, cit. supra, in which we have this day handed down an opinion sustaining the appellant teachers' contentions and ordering their reinstatement to the positions from which they were suspended and later dismissed.
Even if Mrs. Watson's plea of the First Amendment was not well placed (cf. Barenblatt v. United States, 360 U.S. 109), her refusal to answer the Committee's questions did not render her incompetent as a public school teacher. Just as in the Intille, Deacon and Atkinson cases, here, also, the appellant did not refuse to answer any question of her administrative superior (Dr. Hoyer) and her employer Board did not ask her any. All that was produced at the hearing before the Board to support the charge of incompetency against the appellant was a transcript of the record of her appearance before the Committee when she refused to answer certain questions on a plea of constitutional right under the First Amendment so to do. If the privilege claimed was not legally available to the witness
in the circumstances, that fact would not serve to prove her guilty of the charge of incompetency in her position as a Pennsylvania school teacher with tenure.
If a witness persists in refusing to answer questions of a Congressional Committee on asserted constitutional grounds, which the Committee does not acknowledge as a legal basis for the refusal to answer, a citation for contempt is in order and the witness can be indicted and found guilty of contempt of Congress. But, even that eventuality would not render the witness liable to a State penalty for having refused to answer the Committee's questions on a plea of a constitutional privilege. As matters transpired in Mrs. Watson's case, her plea of the First Amendment would appear to have been properly interposed.*fn2 But, even if the plea was not validly lodged, the most that could be said of the witness's refusal to answer the Committee's questions was that she acted on a mistaken belief as to what her constitutional rights were under the First Amendment. The record in this case does not furnish the slightest inference, nor does anyone venture to suggest, that Mrs. Watson's plea of the First Amendment was made either in bad faith or frivolously. Such being the unquestioned situation, "Obviously the State could not draw unfavorable inferences as to [her] truthfulness, candor or [her] moral character in general if [her] refusal to answer was based on a belief that the United States Constitution prohibited the type of inquiries
which the Committee was making": Konigsberg v. State Bar of California, 353 U.S. 252, 270 (1957).
Nor can the witness be faulted for a mistaken belief (if such it was) as to what her constitutional rights were under the First Amendment. Her appearance before the Committee antedated by more than five years the decision of the Supreme Court in Barenblatt where it was held (five to four), in circumstances quite similar to the present case, that the First Amendment did not justify Barenblatt's refusal to answer questions of the same Congressional Committee concerning Communism. We have referred to the division in the Court in Barenblatt only to stress the fact that, where four of the nine well trained legal minds of the Supreme Court hold to the opinion that the First Amendment justified Barenblatt in his refusal to answer the Committee's questions, surely a person untrained in the law cannot justly be thought to be incompetent for entertaining a like opinion and acting upon it.
This case presents, then, the dismissal of the appellant, a teacher with tenure, by the Board of Education solely because she refused to answer certain questions of the Congressional Committee in reliance on asserted constitutional rights. This did not constitute lawful ground for the Board's abrogation of the appellant's contract as a professional employee of the Public School District on a charge of incompetency. As recognized in Slochower v. Board of Higher Education of New York, 350 U.S. 551, 558, "It [was] 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 government of the city, or ... official conduct of city employees.'" Here, likewise, the Congressional Committee was not charged with the duty
of ascertaining which, if any, of Philadelphia's school teachers, was incompetent within the meaning of the Pennsylvania Public School Code.
In Board of Public Deucation v. Beilan, 386 Pa. 82, 94, 125 A.2d 327, which the appellee presently cites, this court squarely based Beilan's dismissal on the ground that he had refused to answer questions of his Superintendent in matters touching his capacity as a teacher. Speaking for the court, Mr. Justice CHIDSEY said, "We are satisfied that his refusal to answer the inquiry of his administrative superior constituted incompetency within our definition of that term." (Emphasis supplied.) And, on certiorari, the Supreme Court of the United States recognized, in affirming, 357 U.S. 399, 409 (1958), that "The Pennsylvania Supreme Court merely equated refusal to answer the employing Board's relevant questions with statutory 'incompetency'." (Emphasis supplied.)
We also hold, in keeping with our decision in Board of Public Education v. Intille, Deacon and Atkinson, p. 1, ante, that a teacher's refusal to answer questions touching her loyalty does not constitute "incompetency" within the meaning of that term as used in the Public School Code of 1949 and that any proceeding looking to the dismissal of a teacher with tenure for alleged disloyalty must be brought and proceeded with under the provisions of the Pennsylvania Loyalty Act of December 22, 1951, P.L. 1726 (65 PS § 211 et seq.).
It follows, therefore, that the Board's dismissal of the appellant on the ground of alleged incompetency, which was based alone on her refusal to answer questions of the Committee on a plea of privilege under the First Amendment, deprived her without lawful cause of her right to follow her profession, as a teacher with tenure, in violation of the due process requirement of the Fourteenth Amendment.
While it is unnecessary for us to pass upon the appellant's additional contention that the hearing given her by the Board did not comply with the requirements of procedural due process, reference to the hearing, and the curtailed manner in which it was conducted, will serve to pinpoint further the important fact, which stands out glaringly in the record, that the appellant was dismissed solely because of her refusal to answer certain questions of the Committee in reliance on a constitutional privilege. The Board's charge against the appellant being incompetency in her capacity as a teacher, she called twelve well qualified witnesses, according to counsel's offers of proof, to testify to her competency as a teacher and to her keen sense of civic responsibility, sound judgment, and appreciation and ideals of citizenship. An objection by counsel for the Board to each of the proffered witnesses was sustained by the Board on the ground that their testimony would be irrelevant and immaterial to the charge which was based exclusively on her refusal to answer the Congressional Committee's questions. Whether the excluded testimony of the witnesses offered by the appellant would have been credible or not, it would seem to have been both relevant and material to her refutation of any appropriate charge of incompetency.
The order of the court below is reversed and the record remanded for further proceedings not inconsistent with this opinion.
ING OPINION BY MR. JUSTICE MUSMANNO:
[EDIT ] My distinguished colleague Justice EAGEN begins his admirable and formidable dissent with the phrase: "I emphatically dissent!" If there were a way to emphasize "emphatically", I would do so, for I regard the ...