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BOARD PUBLIC EDUCATION v. SOLER. (12/29/61)

December 29, 1961

BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA, APPELLANT,
v.
SOLER.



Appeal, No. 472, Jan. T., 1961, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1954, No. 7939, in case of Board of Public Education, School District of Philadelphia v. William G. Soler. Judgment reversed; reargument refused February 6, 1962.*fn*

COUNSEL

C. Brewster Rhoads, with him Sidney L. Wickenhaver, and Edward B. Soken, for appellant.

A. Harry Levitan, for appellee.

L. J. Lichtenstein submitted a brief for American Civil Liberties Union, Greater Philadelphia Branch, under Rule 46.

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

Author: Bell

[ 406 Pa. Page 169]

OPINION BY MR. CHIEF JUSTICE BELL

The facts in this case are not in dispute and may be thus summarized: On May 28, 1953, appellee-Soler, a teacher in Philadelphia Public Schools, was called to the office of Dr. Hoyer, Superintendent of Schools, and was informed that Dr. Hoyer had certain information in his possession which had an important bearing upon appellee's loyalty, and that Dr. Hoyer would like to ask appellee some questions with respect to this. Appellee then asked Dr. Hoyer to give him a list or statement of the proposed questions since he desired to consult his attorney before deciding whether to answer them. Dr. Hoyer thereupon gave him a sample question to take back to his attorney. That question was whether appellee

[ 406 Pa. Page 170]

    had been an active Communist in January of 1952.

A second interview between Dr. Hoyer and appellee took place at Dr. Hoyer's office on June 19, 1953. At this interview appellee answered in the negative the sample question which had previously been submitted to him. Appellee further stated that before he would answer any similar questions he desired the opportunity to be supplied with the questions, so that he could again take them to his attorney for consultation. Dr. Hoyer refused to accede to his request, at which point appellee refused to answer any further questions dealing with his alleged disloyalty.

Because of this insubordinate conduct of appellee the Board of Public Education of the School District of Philadelphia, after a hearing at which appellee was present and represented by counsel, dismissed the appellee on the grounds of "incompetency." The Superintendent of Public Instruction of the Commonwealth of Pennsylvania affirmed the decision of the Board. Appellee appealed to the Court of Common Pleas No. 1 of Philadelphia County which reversed the decision and set aside the discharge (dismissal) of the teacher. The Board thereupon took this appeal.

The lower Court correctly posed the issues when it declared: "There are basically two legal issues involved in this case. The first is whether or not a school teacher can be discharged for incompetency on the ground that he refused to answer questions dealing with his loyalty, propounded to him by the Superintendent of Schools. The second issue, assuming that the first should be answered in the affirmative, is whether or not appellant [here appellee] can be properly held to have refused to answer questions relating to his loyalty propounded to him by the Superintendent of Schools." The lower Court then went on to answer both issues in the negative.

[ 406 Pa. Page 171]

    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 pp. 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." ...'

"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: '...

[ 406 Pa. Page 173]

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 ...


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