Appeal, No. 473, Jan. T., 1961, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1954, No. 8270, in case of Board of Public Education, School District of Philadelphia v. Bernard August. Order reversed.*fn*
C. Brewster Rhoads, with him Sidney L. Wickenhaver, and Edward B. Soken, for appellant.
William J. Woolston, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The fidelity, candor and intellectual honesty which a school teacher owes to the public school system of which he forms a part is the subject matter of this appeal. The precise issue is whether a school teacher who refuses to cooperate with the school superintendent in an inquiry on the matter of loyalty to the United States may be dismissed on the ground of incompetency, which is one of the reasons assigned in the School Code for dismissal.
The facts leading up to a determination of that issue may be summarized as follows:
In 1934 Bernard August was engaged as a teacher in the Philadelphia public schools and assigned to the Gratz High School, teaching mathematics. In 1943 he was transferred to the Olney High School, continuing to teach the same subject. In that same year he joined the Communist Party, actively participating in its program. In time he became the financial secretary of the Northeast branch of the Communist Party, collecting dues from fellow-members and transmitting the money to Communist central headquarters.
On October 14, 1952, he was summoned to the office of the Superintendent of the Philadelphia Public Schools, Dr. Louis P. Hoyer, who informed him that he had some questions to put to him on the subject of loyalty. August replied that he would not answer questions and wanted to consult with his attorney. Eight days later, October 24, 1952, he called Dr. Hoyer by telephone and informed him that he had been advised by his attorney that he was not required to answer questions on the topic mentioned by Dr. Hoyer, namely, loyalty.
On November 20, 1953, Superintendent Hoyer gave August an unsatisfactory rating as school teacher, particularly marking him deficient under the headings of professional relationship, judgment, professional attitudes, civic responsibility and appreciation of ideals. Five days later the Board of Public Education suspended him as a teacher, preferring charges against him on the grounds of incompetency and persistent wilful violation of the school laws of Pennsylvania.
On February 17, 1954, he was called before the House Un-American Activities Committee to testify regarding his Communist membership. He refused to answer questions, pleading the First and Fifth Amendments of the Federal Constitution.
On March 22, 1954, the Board of Public Education of Philadelphia conducted a public hearing into the
charges it had brought against August and, on April 12, 1954, ordered his dismissal as a school teacher. He appealed to the Court of Common Pleas No. 6 of Philadelphia County which reversed the decision of the Board and ordered his re-instatement. The Board appealed to this Court.
A decision filed during this session in the case of Board of Public Education, School District of Philadelphia v. Soler, 406 Pa. 168, holds that a school teacher who refuses to answer relevant questions put to him by the Superintendent of Public Schools makes himself liable to a charge of insubordination and incompetency and may, in consequence, be dismissed from his employment even though the questioning is directed to the matter of loyalty. This decision follows the ruling in the case of Board of Public Education v. Beilan, 386 Pa. 82, which was affirmed by the Supreme Court of the United States (357 U.S. 399). It was argued in the Court below in the Soler case, as well as in the case at bar, that the Beilan precedent had been overruled by the decisions of this Court in the cases of Board of Public Education v. Intille, 401 Pa. 1, and Board of Public Education v. Watson, 401 Pa. 62.
But it is quite evident that the Intille and Watson decisions in no way affected the ratio decidendi of the Beilan decision. The statements in Intille and Watson which suggest anything to the contrary were dicta voiced by the opinion writer and, as stated in the Soler decision, are disavowed.
Thus, the law is settled definitively and conclusively that when a school teacher refuses to answer questions which are put to him by the Superintendent of Schools or any other authoritative school superior concerning his fidelity to the United States, the School Board may proceed against that teacher under the provisions of the Public School Code of March 10, 1949, P.L. 30, § 1122 et seq., as amended, 24 PS § 11-1122 et seq., and
is not limited to the procedure designated in the Pennsylvania Loyalty Act (also known as the Pechan Act) of December 22, 1951, P.L. 1726.
This ruling does not mean, as suggested by counsel for the appellee, the dismantling of the machinery set up in the Pechan Loyalty Act. If a school superintendent, while interviewing a school employee, ascertains that he is or was a member of the Communist Party, and the evidence warrants further action, the Superintendent then turns to the mechanism of the Pechan law.
Any initial interrogation on loyalty in no way conflicts with the purposes of the Pechan Act. A school superior certainly has the right to ask a teacher whether he has ever engaged, for instance, in the sale of narcotics. He possesses no less authority to inquire whether the teacher ever belonged to an organization committed to the overthrow of our government by force and violence.
No one could reasonably deny to the Superintendent of Schools the authority to question an employee, when there is reason to support the inquiry, whether the employee has committed any crime, or conducted himself in any manner, inimical to the best interests and welfare of the children in the school where he is employed. If the Superintendent asked a teacher whether he had committed arson and the teacher refused to answer, could it be maintained that the school authorities would not have the right, and the obligation, to dismiss the teacher on the basis of incompetence? Is burning down a dwelling any less culpable and reprehensible a deed than taking an active role in an organization committed to putting fire to the house of democracy, designed by the architects of the Constitution and built by all Americans since 1776?
Despite arguments to the contrary by the appellee, the procedure followed by Dr. Hoyer in the case at bar
better protected, in limine, Bernard August from any unjust imputation than would a grinding of the Pechan machinery. The conference conducted by Dr. Hoyer was a private one, so that August was spared all embarrassment or public harassment. If, however, instead of this initial investigation, the Loyalty Act had publicly taken hold, and it had developed later that August was entirely innocent, he might still suffer from the effects of passing through the Pechan machinery, which, even with expert hands at the control, could well have left him with bruises and hurts.
Thus, it is self-delusion to argue that somehow the appellee in this case, or any school employee, would be better off, when a question arises as to loyalty, to be taken immediately into the mechanism of the Pechan Act.
And then, aside from what the procedure, in either event, means to the employee, the proper administration of the schools demands a prompt personal inquiry into equivocal conduct on the part of an employee. In explaining why he called August for questioning, Dr. Hoyer said: "I considered it important, first of all, because I wanted to discover, if I could, by conference and by conversation with Mr. August, whether or not the facts indicated in the statements [regarding August's membership in the Communist Party] were correct, and also whether the relationships indicated in the questions had persisted to the present time. I considered them important also, or considered my desire important, because they had bearing, in my estimation, on the fitness of Mr. August to be a teacher in the Philadelphia Public School System and it is my responsibility to make certain that the teachers who come into the Philadelphia school system or who remain in it are fit persons to be there." (Emphasis supplied).
Such a declared purpose can only be commendable.
Any superintendent, who would allow statements, or even rumors, of disloyalty to go uninvestigated, would be derelict in the performance of his duties. A ship captain who learns that a member of his crew is making statements about mutiny or is indifferent to his responsibilities for the safety of the vessel, would be a traitor to his own responsibilities if he did not call in that crew member and demand to know if there was truth to the circulating report.
In the Soler case the school teacher was dismissed because he failed to reply to questions advanced by the Superintendent of Public Instruction. He maintained, as August maintains here, that the procedures providing for dismissal under the Pechan Act are mandatory and exclusive. Chief Justice BELL disposed of the Soler contention with the statement that "appellee was not dismissed on the ground of disloyalty; he was dismissed on the ground of incompetency because of insubordination and lack of frankness, candor and intellectual honesty."
Justice FRANKFURTER, in his concurring opinion in the Beilan case, supra, and the case of Lerner v. Casey, 357 U.S. 468, said: "When these two employees were discharged, they were not labeled 'disloyal'. They were discharged because governmental authorities, like other employers, sought to satisfy themselves of the dependability of employees in relation to their duties. Accordingly, they made inquiries that, it is not contradicted, could in and of themselves be made. These inquiries were balked. The services of the employees were therefore terminated."
It thus is settled law in this State that a school employee owes the duty of frankness to his administrative superior; and is obliged to cooperate. To repeat the words of Chief Justice BELL, a school employee may be dismissed because of "insubordination and lack of frankness, candor and intellectual honesty."
Was Bernard August insubordinate? Did he exhibit a lack of frankness, candor and intellectual honesty in his dealings with his administrative superior? Essentially that is the key which opens the lock on the answer to the question involved in this appeal.
In the case of Albert Appeal, 372 Pa. 13, Chief Justice STERN said: "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 ... 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."
When Superintendent Hoyer was informed that one of his teachers was participating in subversive doctrines he proceeded to determine at once the true fact by talking to the school teacher himself. He was entitled to cooperation from him, in accordance with the mandates of the Constitution and the laws of the Commonwealth. Did he receive it?
The court below held that August did give that cooperation. This conclusion on the part of the court, in the face of the record, suggests a complete blotting out of the vast forest of fact because of a few scraggly trees of sophistry. The court quoted from Dr. Hoyer's testimony
and, from the indicated quotation, found that Dr. Hoyer did not ask August any questions at the first interview and that, therefore, August could not reply. It is true that, taken apart from everything else in the record, one could read from replies made by Dr. Hoyer, in one circumscribed part of the record, that August was not questioned. However, when one reads the entire record it becomes as plain as a pikestaff that August was under interrogation at that first interview. Otherwise, why did he tell Dr. Hoyer that he would speak to his counsel before he decided whether he would answer questions put by Dr. Hoyer? In fact, the school teacher himself, Bernard August, testified that Dr. Hoyer questioned him. Here is his testimony: "When I came into the room, Dr. Hoyer ... said that he had received certain information which he felt it was his duty to question me about... He said, I have certain questions that I want to ask you. I said, What type of question? I would like to know what the questions are before I undertake to answer them ... Mr. Soken [Counsel for Philadelphia School Board], who was present, interrupted to say that there was no reason why I had to know what the questions were before I agreed to answer or refused to answer. Dr. Hoyer, however, very politely said, I see no harm in letting him hear one of the questions. And the question was something to the effect, there is sworn testimony, or something like that, to the effect that you were a member of the North Philadelphia branch of the professional section of the Communist Party of Philadelphia. And I said, well, I would not undertake to answer questions of that sort without first consulting an attorney." (Italics supplied).
Thus, Dr. Hoyer, did put at least one question, and it was only because of August's refusal to answer, that more were not forthcoming at that time.
The court misread the record in another connection. It said: "No second interview was ever arranged, neither at that time nor at any subsequent time."
Here is Dr. Hoyer's testimony on that phase of the case: "Q. Doctor, why was there a second conference arranged for? A. The second conference was arranged because Mr. August had indicated his desire to consult counsel, and of course I agreed to his request." (Emphasis supplied.)
Thus, a second conference was arranged. It did not blossom on the tree of reality because August killed the roots of the tree with the frost of his defiance and hostility. He telephoned Dr. Hoyer and informed him that he would not answer the questions which Dr. Hoyer wished to address to him.
But the lower court argued: "the mere receipt of a telephone call which purports to set up a future course of conduct, which course of conduct was never tested, cannot be sufficient cause for dismissal. Mr. August should have been afforded the opportunity to meet face to face with his superior and upon notice of the ...