Appeal from the Order of the Secretary of Education in case of Lloyd F. Fink v. Board of Education, Warren County School District, Teacher Tenure Appeal, No. 25-78.
James P. McGarrity, with him Daniel W. B. Flint, for petitioner.
Joseph A. Massa, Jr., for respondent.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. President Judge Crumlish and Judges Mencer, Rogers, Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision of this case.
[ 65 Pa. Commw. Page 321]
Lloyd F. Fink (Petitioner) appeals to this Court from a determination of the Secretary of the Pennsylvania Department of Education (Secretary), which affirmed the decision of the Board of School Directors of the Warren County School District (School Board), terminating Petitioner's employment on the grounds of persistent negligence and persistent and willful violation of school laws.*fn1
[ 65 Pa. Commw. Page 322]
Petitioner was a tenured school teacher from 1973 to 1978. He worked under a professional employee contract at the Irvine Elementary School in Warren County. On April 10, 1978, at their monthly meeting, the School Board unanimously voted to permanently terminate Petitioner's employment. Written notice was sent to Petitioner on April 11, 1978 and a hearing was held on May 18, 1978 before the School Board.
At that hearing evidence was presented from which the School Board found as a fact that Petitioner had been conducting activities of a religious nature in the classroom. According to the findings of the School Board, the Petitioner opened both the morning and afternoon sessions of school by saying the pledge of allegiance, the Lord's Prayer and by reading a Bible story*fn2 to his fourth grade class. If the children were unaware of the meaning of a word or phrase used in the Bible story, Petitioner would explain it to them, but otherwise did not sermonize to his students. When the parents of two students objected to Petitioner's conduct involving prayer in the classroom, the principal of Irvine suggested that those children be excused from class during the opening exercises. Pursuant to this suggestion, those children were instructed to learn the Preamble to the United States Constitution. At first, these children were kept in the hallway -- but
[ 65 Pa. Commw. Page 323]
later were instructed to go to the library during the religious activities. By February 3, 1978, Mr. John Binney, Acting Superintendent of the Schools, met with Petitioner and informed him that the religious activities he was engaging in during school time were prohibited activities and that their continuance would place Petitioner's job in jeopardy. Mr. Binney told Petitioner to cease and desist from these religious practices. On February 7, Mr. Binney sent a follow-up letter to Petitioner asking him to stop the objectionable activities.
Although Petitioner did discontinue the religious activities in the afternoon session, he continued to say an audible extemporaneous prayer (instead of the Lord's Prayer) and to read one Bible story in the morning. During this time of prayer Petitioner stood with his head bowed and his eyes closed for approximately one-half minute. Students were never requested to participate in these prayers. Petitioner testified that he believed he had a constitutional right to do what he was doing and that he felt a need to ask God for His guidance at the beginning of each new school day. Petitioner testified that he was not attempting to proselytize his students.
On February 10, 1978, the principal again requested that Petitioner stop his activities completely and warned of the ramifications if he failed to do so. Nonetheless, Petitioner declared his intention to continue and was thereupon suspended from his employment pending a hearing before the School Board.
From those findings, the School Board concluded that Petitioner's conduct constituted a violation of the school laws and persistent negligence and, accordingly, dismissed him. In the opinion of the Secretary dismissing Petitioner's appeal, the findings of fact and conclusions of law of the School Board were affirmed.
[ 65 Pa. Commw. Page 324]
It is the duty of this Court to affirm the order of the Secretary unless there was a violation of constitutional rights, an error of law, an abuse of discretion, or if a necessary finding of fact was unsuported by substantial evidence. Gobla v. Crestwood School District, 51 Pa. Commonwealth Ct. 539, 414 A.2d 772 (1980). We find no infirmity in the findings of fact nor do we find an abuse of discretion. Substantial evidence exists in the record to support each finding. Indeed, with very few exceptions of a minor nature, there is no conflict in the evidence. We must, therefore, look to the constitutional issues raised to determine whether a violation of constitutional rights occurred and to determine whether a refusal to comply with the superintendent's directives to cease religious exercises in the classroom was valid cause for termination of the contract of a public school teacher on the grounds of "persistent negligence" and "persistent and willful violation of the school laws" of the Commonwealth of Pennsylvania.
In his appeal, Petitioner raises several constitutional issues which we shall discuss seriatim.
I. Does an elementary public school teacher violate the Establishment Clause of the First Amendment by conducting religious activity in the ...