Petition for Writ of Certiorari — H. B. Ives Co. v. Commissioner

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ke - Office: Supreme Court, US.

ho | re G dsireses

; ¥' . rl :

. APR 14 1962

| Supreme Court of ‘the United ) States aa :

- f.

| 4 October Term, 1962. i os

874

BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT

OF PHILADELPHIA , =.

——......_ BERNARD AUGUST, .. ;

¥ 6 -—- Petitioner.

_ PETITION FOR WRIT OF CERTIORARI AND

: APPENDIX.

Wiruiam J. Woo.ston,

2010 Two Penn Center Plaza,

Philadelphia 2, Pa., :

Attorney for Petitioner.

Internationa’, 711 So. 50th St., Phila. 43, Pa. _ «

INDEX TO PETITION.

= eice Page

‘ G a8

SOPinpons BEiow. ..... 215. teccgeacsccctcccccvecvasoeed $. 1

JURISPICTIOS AL STATEMENT 0000.5. on haba eee eer ns ee re

-* ada - ~~ . .

mt Ry tt eee Pere or errr rrr Pere increas 2

CONSTITUTIONAL PROVIsiOsS INVOLVED 22. 4...22006-005. t- 2°

- . e ; ~~* S -

* STATEM MOO OFCTHE CASE*. 6... c cece cece ccc geeng¥ebuve 3

Metnop oF KaisinG Constitution AL QUESTIONS .......... ®

Reasyns FoR GRANdING 1th WRIT, 22... 2.2: atevartase a

APPENDIX :

Opinion of the Supreme Court of | ennsylvania a ee 11

Dissenting Opinion ot Cohen, 'J., of the Supreme Court of — -

ee. ere eres a ke de ae aais ae

- Concurring Opinion vi Jones, j., of the Supreme Court of

, (emsylvauas 6 cece ccc c ens stesetecBpaceus’ - “ae

_____ Order. othe -Supremme-Court of Pennsylvania Re V tition

for Leave to File a Petition for Keargument and Peti-

tion for Keargunfent ............... Pe, PO eee

Appellant's Exceptions to Adjudication of the Superin- .

. syit 6 £3.28. 8.0 “t+

sendepit_ot Public Instruction sr eeeeetees seecaeaen 41.

eae

‘ sy ed , ; “ ;

. Gi TABLE OF CASES CITED. ° .

- . : eee Page

Anastaplo, 300 U. 5. 82,6 L. ied. uM 135, 81.8. Ct. 978 27... &,9

' Board of Public Education v: Beilan, 380'Pa. $2". .......... 4,56,

Board of Education v. Beilan, 357 U.S. 399, 2.L. Ed. 2d, 1414,

Oe LEE civdccvucersséen Sein s vetas wre one vie ae 4,5

Board of Public Education v. Intille & Deacon, 401 Pa. 1 ....4,5,6

Board of Education v. Soler, 406 Pa. 168 2. ..0..00.02-00005 5

Board of Public Education v. Watson, 401 Pa. 62 ........-. 46

.Cohen.v. Hurley, 366 ULS.°117, 6 L. Ed. 2d i 81S. Ct. seit 8,9

tel Vv. Louisiana, a6 U.-S.°157, 7 LL. Eé 2d 207,.

ek © A Pe PUT Pe eer ee gee

Pees Sem v. State pat of California, 353 U.S. 252, ‘1 L. Ed.

SG Ee ER OEE UA ei sok Chas eek pe cea kee +i er

Koenigsberg v. State Bar sas California, 30 us: S, 36.6 L. Ed. :

2d 105, 81S. Ct. 997 200.0... GL eReRUAmECeEe eRe ESO 8

‘Slagle v. Ohio, 366°U: Ss. 259, 6 L. Ed. 2 277, 81S. Ct. 1076 8

Thompson v.- City “of Louisville, 362 US, 199, 1 Ed. 2d

_, GHA, 80 S, GH... 62 iekcbs oa : pn ep Orie 9,10 .

AUTHORITIES CITED. =

Aa ; _ Page

Act of June 25, 1948, ¢. 646, 62 Stat, 929 (28 USCA 1257) ae

Constitution of the United States, Amendment XIV, Section 1. | 2.7

Pennsylvania ‘Lovalty Act. December Fz, 3938, &. 1. 1726 a

P.S: 211)... Pere fesvuews Scns 5

Teachers TenureyAct, Mieth 10, 1949, P.-L. 30, Art. XI, Sec.

_Al2 (24 P. S. 11- sic RE OE Ag era SC aapewes 5

IN THE

Supreme Court of the United States.

<3 ok Term, 1962. +

«i Re: BOARD OF PUBLIC. EDUCATION. Pa

e ca r . aS, { a Po

- BERNARD AUGUST -

Y 4

PETITION: FOR WRIT OF CERTIORARI.

\. é ae

> ° J

OPINIONS BELOW;

The Opinion pai the Supreme ( oh of Pennsylvania. is ;

reported at 406 Pa. Dea (11-40). BBE Opinion. of the Court

of Common Pleas ef Philadétphia County is unreported

( i dua). ‘

sURISDICTIOWA AL STATEMENT.

On January 17, 1962, the Supreme Court of Pennsyl-

Vania, in a final order, reversed an order of the Court of

Common Pleas of. Philade ‘Iphia. County and thus reinstated.

the Board of Public Education's dismissal of petitioner on

the charge of Uicompe ‘tency for refusal to answer a question’

" asked by the Superintende ut of Philadelphia public schools.

- ad

der the Act of Jane : maui) ¢. 6 646, 62 Stat. 929 (28 USCA

> ~ P

2 Petition for Certiorari

» *

‘ P

The Board of Public Education’s . dismissal had been

‘affirmed by the Superintendent of Publie Instruction of

Pentisy Ivania.

Jurisdiction to review ‘the above Order is invoked un-

257).

QUESTIONS PRESENTED.

+ When there was no evidence that petitioner refused,

to answer a question, was it a denial of due process to dis-

miss him for refusal to answer a question?

2. When petitioner had beén granted permission to ‘ob--

tain advice of counsel but was given no warning tliat his

refusal to answer might Je grounds for his dismissal, was

it a denial of due process to dismiss him for tefusal to

answer? . ; a

3. When petitioner subsequently answered ail relevant

questions asked by the Board of ‘Public Education, was it a

denial of due process to dismiss him for refusal to-answer

the same area of questioning by the Superintendent of

- ‘} 1ools? Si ; : ; e<"

< re ates: ‘ =i a :

“CONSTITUTIONAL PROVISIONS INVOLVED.

“Amendment ‘XIV to the Constitution of’ the United

States, Section 1, provides in pertinent part:

‘*. . . nor shall any State deprive any person of life, ~

liberty or property without due process of law; nor

- deny tb any person in its jurisdiction the equal protec-

tion of the law.’’

_ Petition for Certiorant ‘ -

STATEMENT OF THE CASE. ~ *

Petitioner, a long time teacher of mathematies in the

Philadelphia pyblig school system, was sistnissed on April ,

12th, 1954. for incompetency on the ground that -he shad

refused to answer his Superintendent’ s questi ions about his

loyalty.’ . .

- ‘At the Board of Edueation’- hearing only two wit-

nesses testified: the Philadelphia Superint¢hdent of Public

"Schools, Dr. Hoyer, and petitioner. - ”

Dr. Hoyer testified:

‘A. Mr. August appes ‘ared.in my office in Octobe v

(14, 1952 2) of that year, in response toa. . . request

on my part. (14a) . A ;

* . *

A. | indicated to him that | had information in my

_ possession concerning which I should: like to have his

reaction, 1 wanted to ask him certain questions, and

that thase questions had relation to his loyalty. (1a)

* * *

_Q. What did you ask Mr. August when he eame to

_ your office on October 14th (1952

A. I did not ask him anything.

Q. Did he refuse to answer anything if you did

not ask him anything? .

A. That would hardly be possible, (45a)

A. I fold him on his request that 1 was agreeable

to his consulting counsel.

Q. And did he leave your oflicy ‘on October 14th

‘to consult counsel?

A. That was the purpose as I stienduiad it. (40a)

A. There was no fasther conference with Mr.

August. He telephoned to my vilice’ on October 22

_ °

+ a oe Petition a Certiorart-

(1952),. indicating that he had the: inthe’ of anni

and the advice was the same as it had been in other

cases, and that he zwould not answer the questions.

( 5306, : :

Po: eo eo

Did you ever el him for . second interv iewt

. No, I did not.

Did he ever refuse to go to a second interview?

. No, I did not ask him ‘to come to: a second inter-

view. (40a)

bab st chon

_. Q. Did you ever direct Mr. August to answer a

question which he refused to answer? _ ;

A. I did not'‘ask Mr. August nny question.’’ (41a)

e oan e ri --

At the same hearing petitioner testified fully, about his

past and present political associations which related to his

‘loyalty (62a-67a). Thereafter, he was thoroughly cross-

examined both by the «Board counsel and- by individual

“members of the Board. Petitioner answered all questions

relevant to his loyalty (68a-108a).

On April 12, 1954 the Board of Education sustained

the charge and appreved petitioner's dismissal (113a). On

January 17, 1955 the Superintende int’ of the Pennsylvania

Department of Public Instruction dismissed petitioner!s

appeal and affirmed. his dismissal (118a).

Petitioner promptly appealed to the Court of Common

Pleas of Philadelphia, filing exceptions to the ad judicatign ;

of the Superintendent of Publi¢ Instruction (41-44). -

Petitioner’s appeal was held in abeyance,-with others,

pending the disposition of. other previously appealed cases

growing out of the’ same series of incidents.. Board of *

Public Education v. Betlan, 386 Pa. 82: Board of Public

Education v. Intille. ¢ Deacon, 401 Pa. 1; Board of Public.

+ Education v; Watson, 401 Pa. 62.. This Comrt took note’ of

*. the situation in Board of Education v. Beilan, 357 U.S. 399,

+e 5?

: —. Petition Yor Certiprar aaa ee

‘SL. Ed. ma 1414. 78 SL. 1: 17, and see Board of Kl ation

. Soler*406 Pa. 168, as to whie h there has been or will

‘aa b@Hiled a petition to this ‘ourt. :

On May 31, 1961 the Court of Common-Pleas of r Phila.

delphia County reversed pe titioner’s dismissal on the dual

grounds’ that :. : y

: ‘ aT he Supe rintendent sale ho qnte stion.

At the Board of Edueation hearing petitioner fully

vibes: all questions relevant to his prior and presetit °

loy alty.

: | 3

On appeal to the "Pennaylyania Supreme Court) the

Court of Common Pleas was reversed ' on the crounds that:

1. It would have been futile for the Superinteude nt to

ask questions for petitioner has stated that on advice of

counsel he woud not answer questions about his) prior

loyalty. : ig, |

° “9. Petitioner's subseqhent, answers th Board oof

Edueation failed. Jo overcome his prior stateynent to the

Superintendents. : ;

The point at issue in Beilan (sipra) was whether the

Board of Edueation was required to conduct any and all

| inquiries pleas ord under the Pennsyvivania Loyalty Act,

ecember 22, 1951, P. L. 1726 (65 PLS. 211) and was con-

stitntionally prohibited from conducting such an iequiry

under the guise ofan incompetency oT ‘under the ;

Teachers Temire Act, March 10, 1949, P. LL. 30, An: XI,

_ See. 112 (24 PLS. 11-1122

In we ilan (supra) a. r ‘ourt found ho violation of. ‘due :

process .

By pom ‘the completion of the. litization in Beilan (supra)

three other teachers perfected their appeals." Their dis-

misnals wefe reversed and their reinstatement ordered by’,

‘the Pennsylvania Supreme Court, Byard of Public Educa-

—_——-

1. Five of the seven Justices concurred in the reversal. “One

Justice dissented, and one Justice, being ill, did not participate.

a Petition for reuibosira sa

tion r. Intille ‘€ Deacon, 401 Pa, : Board of Public Edu-

cation +. Watson, 401 Pa. 62. °T A Court refused to grant _

certiorari. | Nie principal contention in that group of ap-

peals involved ¥he effect of Teather exerersing their’ rights

under the Fifth and First Amendments as Witnesses before

a ‘ongt@ssional (‘ommittee.

Petitioner raises questions not raised by “Beilan

(supra) or. Thtille & Roni sw (supra) or Watson (supra):

METHOD OF RAISING CONSTITUTIONAL 2

QUESTIONS. —

"In, aecordanceswith the applicable: Statutes and Rules

of Court, petitioner's appeal-from the Pensylvania’ Super-

intendent of Public STustruction to the Philadeiphia County

Conrt of Common Pleas included the filines of exceptions to

the Super intendent’s decision. ° , ;

‘Those exceptions include the issnes raised in this’ peti-

tion, in + he following language :

No. 8:

r “The adjudieation is erronéous. in disregarding the

“statement. of the Superintendent of Schools made at the

cheating before the. Board of Edneation that after Dr.

Hoyer stated that he proposed to ask appellant qres-

tions, Dr. Ho¥er did hot thereafter maké an appoint-

ment or other mecting and actually ask any questions

" whieh appellant refused. to answer’ (42)

No. 16:

. a:

“The adjudication is erroneous in that it fails to note

that the act upon: which the discharge was based was

the aceeypitance by appellant of the advice of counsel

after -appellant had been advised by Dr. Hoyer that

appellant might seek the advice of counsel prior, to

answering any questions which Dr. Hoyer proposed

asking, and tha. in fact Dr. Hoyer never did ask-ques-

tigns until after appellant had been suspended, ‘and

that the first time the questions were asked was at the

Petition for Certiorart | T

— alle questions.”* (44)

No. 7: : )

“The adjudication is‘erroneous in disregarding the

fact that there was no refusal to answer questions

asked by the Board of Education “at, appellant’s

hearing.”” (42)

bearing of the Séhool Board at which time appellant.

‘

The Board, not petitioner, appealed from the Court of

‘Common Pleas to the Supreme Court.of Pennsylvania.

Jn accordance with Pennsylvania practice that appeal

Was not based on or limited to submitted exceptions or ques-

tips sidve as stated ino appelant*s brief in the Supreme

Gourt of Pennsylvania and thus are net part of the cert

ied record, ;

Beeanse those tppeak questions are not part of the cer-’

tified reeord they, to the extent relevant are set forth iy the

marging ‘They in the order listed raise’ the issues of the

instant Petition. , j ae

2-els OWhen the stipermrtendent has testiied that he did not

ash the teacher speeitic questions, but the teacher has also testified

before the Board that the Superintendent did tell him that, one of the

questions Was whether the teacher was a member of a specific branch:

and section of the Communist Party, and the teacher subsequently

informed the Superintendent that he would not. answer such questions,

Was the evidenge sufficient to sustain the tinding of the Board that

the teacher was incompetent in refusing lo answer the « Superin-

tendent’s questions 7 ; vo

(2je°When the Superintendent has informed the. teacher” that

dhe desired to aa him questioas regarding the teacher's loyalty and the -

teacher subseiquently informed: the Superintendent: by telephone that

on the advice of counsel he vould not answer such questiggs, was ”

the evidence sufficient to sustrin the tinding by the Board. That the

teacher was incompetent in refusing to answer the questions of the

Superintendent ra 2

(3) “When the teacher is charged with incompetency for fail-

ing to co-operate with his Superintendent by refusing to answer

questions about former subversive affiliations, and the teacher testi-

fes in his hearing on that charge before the Board as to his former

subversive aftiiations and their termination, is the Board required to

exonerate -the teacher .of the charge of incampetency for refusal to

-answer the Superintendent?” >

ona.

S.-. - Petition for Certiorari.

_REASONS FOR GRANTING THE WRIT.

This Court has recently, in Av@uigsberd vc. State Bar

of California, 302 U.S. 252, 1 L. Ed. 2d 810, 77S. Ct. 722°

Koenigsberg r, State Bar of California, 366 U.S. 36, 6 LL.

‘Ed. 2d 105, SIS. C1. 997; Re Anastaplo, 366 UL S. $2, 6 LL.

Ed. 2d 135, 81S. Ct. OTS; Cohen vr, Hurley, 366 U.S. 117, 6

L. Ed. 2d 156, SIS. Ct. 954, and Slagle vo Ohio, 366 U.S.

299, 6 LL. Ed. 2d 277, STS. Ct. 1076, been concerned with the

failure to answer a question as an independent ground for

exclusion, or as in Cohen v. Hurley (supra) and as here

an independent ground for removal or dismissal.

In those stated Opinions this Court limited the. exelu-—

sion or dismissal for failure, to answer to situations in

which: — 7 / nee

* (1) A relevant question was asked and there was a

clear refusal to answer that question ;

(2) There was an explicit Warning that the failure to

answer Would or might be an independent ground for ¢x-—

~ clusion or dismissal.

(3) Thecexelusion or dismissal did not extend bevend

the period of vefusai, ic.. *¢ We fine nothing to suggest

that he would not be admitted mow if he decides to answer, |

in short, the petitioner hold. the keys to admission

in his-own hamds.** ly re aluastaplo (supra).

Petitioner was dismissed on the independent’ grounds | -

of refusal to answer a question in the absence. of all three

of the above stated fimitations. Pennsylvania thas has ex-

tended the exelsionary rale, on the independent ground of

a failure to answer a question, beyond the seope of the.

prior decisions of this Court.” :

Pennsylvania, as to petitioner, has applied that exelu-

sionary rule even though there was:

a Petition for Certiorari 9

onsnsoeser*

(1) No evidence that petitioner was asked a relevant .

question Whie I he refused to answer;

(2) No evidences that he ‘was . advised that his general-

refusal, on the advice of counsel, would be grounds for djs-

missal ;

Cy UnrefutePevidence that when petitioner was first

asked a question he answered in full.

Ln so doing Pennsylvania has permitted ‘petitioner to

be overreached. iy

We believe that extension of the exclusionary: rule for

refusal to answer-is in vontliet with this Court's Opinions

in hur niasherd (Supra), Anastapile (supra) and Cohen (su-

pra), and is in derogation of petitioner's coustitutronal right

to due process, = .

e ‘

ey This-Court, in Garver ¢. Loutsiaha, 368. US. 157, 7 L.

Fal. 2d ‘207; 82 8S. Ct. —, reaftirmed what it had held in

‘ o Thompson: Citi ot Donise adie , 862 CLS. 199, 1 L. Kd. 2d

Ooh sb sot. 624. The ultimate question prese nted to us

ix Whether the charges against the petitioner were so ‘totally

-devoid of on jee ‘tinny support as to render his conviction

uncoustititional under the Dae Process clause of the 14th

Amendment. © The decision of this question turns not on

the Sufficieney of the evidence, but on whether this convie-

tion reststupon any evidence at all. =

-- SF hic Court concluded that it is a denial of constitu.

tional due process to conviet in the absence of ev idence sup

porting that conviction.

The Pennsylvania Supréme Court: in affirming peti-

tioner’s dismissal, on the, charge of incompetency for re-

fusal to answer a question by the Philadelphia Superintend-

ent of Publie Education, erred as had the state courts: in

Thompson (supra) and (rarne r (supra).

10 | Petition for Certiorari

This is so for there is no evidence that the Superin-

tendent asked petitioner a question for at petitioner's ~ Board

of Edueation hearing the Superintendent testified :

“Pe did not ask My. August any question.’ * (41a)

We Believe that the petitioner das an equal right to

constitutional due proeess ata hearing re his dismissal as

did ‘the defendants Thosiy son (supra) and Garner (supra)

in their respective criminal trials,

- As succinetly stated by Justiee Cohen.in hix dissent, pe-

‘titioner, was net dismissed for refusal to answer’ but was

dismissed upon a ‘mere suspicion of refusal’? whieh ‘is

Pnot sufficient’: there must be an aetual refusal to answer to

constitute incompeteney . 005.77 °° Haman beings chan

their minds. A teacher must be civen the opportunity at a

scheduled iiiterview tocrefuse to answer: and must be on

notice that his refusal will constituat incorapeteney, Any

other position does violence to the Due Process causes of

both the United States and Pennsylvania Constitutions’?

st 39). *

9 Respectfully submitted,

Witton J. Woo Lstox,

2010 Two Penn Center Plaza, > _

Philadelphia 2. Penna.

. Afforney tor Petitioner,

‘i

Appendix.

OPINION OF THE SUPREME COURT’

OF PENNSYLVANIA.

Y Kinen: January 17, 102

MusmManno, J.

The filelity, candor and ntelleetnal honesty which a

school teacher owes to the publie school sysient of which

he forms a part ts the sabject inatter of this appeal. The

precise issue is whether g school teacher who refuses te

cooperate with the school superintendent an an inquiry on

the matter of loyalty to the United States may be dismissed

on the erouud of iIncompeteney, Which is one of the reasons

‘assigned iti the School ‘ode Jor dismissal,

The facts leading up to 2 determination of that issue

may be summarized as follows.

In 1934 Bermird August was engaged as a teacher in

the Philadelphia publie schools and axsfgned to the Gratz

High School, teaching mathematics. P1944 he was trans

ferréd to the Olney High School, cuntinaine-te-teach thie

“same subject. In that same year he joined the Communist

Party, actively participating in its program. In time hie

. beeame the financial secretary of the Northeast brane ‘h of

the Communist Party: collec ting dués from fe ‘Hoa -memibe rs

and transmitting the’ money to (ommenist central head-,

quarters.

On October 14, 1952, hé Was summoned to the office of

the Stuiperintendent of the Philadelphia. Publie Schools, Dr:

Louis P. Hoyer, who informed him that he had some ques-

tidns to put to him on the subject of lovalty. August replied

that he would not answer questions and wanted to consult

with®his attorney. Eight daye later, Ottober 24, 1952, -he

5: (11)°

——_———

12 Opinion of Supre me Ct. of Pa.

called Dr. Hoyer by telephone and ition him that’ he

had been advised by his attorney that le was ‘not required

to answer questions on the topic ine ntioned by Dr. Hoyer,

namely, loyalty.

~On November (20, 1953;-Superintendent” aver yave

August an unsatisfactory rating as school teacher, par-

ticularly marking him deficient under the headings of pro-

‘féssional relationship, judgment, professional attitudes,

civie responsibility and appreeiation of aeals. Five days

later the Board of Public Education suspended him as gt

teacher, preferring charges against him on the grounds of

incompetency .and persistent wilful violation of the school

laws of Pennsylvania. ae Re

On’ February 17, 1954, he was called’ before the Honse

Un-American Activities Conunittee to testify regarding his

Communist membership. He refused to answer questions,

pleading the First and sicpa cvs aman ee of the Federal

Constitution.

On March 22, 1954,+he Boal of Public Education of

-—Philadelphia conduefed a public hearing into the charges

it had. brought against August and, on April 12, 1954,

ordered his dismissal asa school teacher. He appealed to

the Court of Common Pleas of Philadelphia County which f

reversed the deeision of the Board and ordered his re-

instatement. The Board appealed to, this Court.

A decision filed during this session in ti case of Board-

of Publu Educ ation, Ni heal District of Pholadelphia .

William Ge Soler, Pa. holds that a school teacher who

refuses to answer relevant questions put to him by the

Superintendent of Publie Schools makes himself liable to

a charge of insubordination and incompetency and may, in

consequence, pa cago niet from his employment even though

the questioning/s directed to the matter of loyalty. This

. decision follows the ruling in the tase 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 ease, as well as

‘eo : .

Opinion wf Nupire woe OF, ot Pa. ; ‘ 3

in the case at bar, that the Bela precedent hod been over-

ruled by the decisions of this Court in the eases of “Board

Of Public Education +. hut ibe, 400 Pia de and Boerd of Public

Education i Wists, 1] 1s. GS. ; rere

B, at it ix quite evident that the fui amd Watseuw deei

sions in, ne Way ateetead ‘the vated dee idewli of the Beidlan

degsion. * The statements in Datdle and Watson which sug

gest anything.to the contrary were dieta veiged be the opin

ion writer and, as stated tenia in “the sof, r din inion, are

disavowed,

>) Thus, the law. is settled definitively and conelnsively

that when a School teacher refuses ‘te answer questions ,

Which are put to him bs the Superifendynt of S-howls wr

any. other authoritative s¢hool superior) cones rn itase hi~

fidelity to the Unite “4 States. the School Bogrd may oree vod

against that teacher under the provisions of the Public

School Code of Marek 10, 1949. PL. SaSeetion F222 et seq.

‘as amerded, 24 PLS. Seetion 1) 12 et seq. and is not

limited to the procedure designated othe Pennsylvania —

Lovalty Act talse known ¢= the Pechan Act) of Decetber-

22,1951, P.LeIT26. ‘ |

This rifling does net moan. as suggested by counsel for

the appellee, the dismantling! the machinery set ups in the

Pechan Loyalty Act. Tf a school superinte audent, While in

~ terviewing a school emplover, ascertains that he is of was

a member of the Conmuanist Party and the evidence war

rants furtherd action, the Saupe rintendent then turns to the

mechanism of the, Pechat law.

Any initial interrogation on lovalty in ne way confflets

with the purposes of the Pechan Act. No school superior

certainly has the right te 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 be-

longed to an org: nization committed 1 the overthrow of onr

‘government by force and violence. a ;

No one could reasonably deny to the Superintendent of

Schools the authority to question an employee, when ‘there

14, Opinion of Supreme Ct. of Pa.

is reason to support the inquiry, whether the employee has

committed any crime, or conducted himself in any manner,

inimical te the best interests and welfare ‘af the clildren in

the school where he js employed. Tf the Superintendent

asked ‘a teacher whether he had committed arson and the

teacher refused to. answer, could it be majntained that the

school authorities would not have the right, and the obliga-

tion, to flismis= the teacher on the basis of incompetence?

Is burning down a dwelling any less culpable and repre-

henstble a deed than taking an active role in an organization

‘committed to destroying the house of demoeraey, designed

by the architects of the Constitution and built by all Amer-

icans sineé 17762 ‘

Despite argument» to thegontrary by the appellee, the

procedure followed by Dr, H Yer in the case at bar better

, protected, in limine, Bernard Angust from any unjust im-.-

putation than would a grinding of the Pee hs in machinery.

The conference conducted by Dr. Hoy er Was a private one,

so that August was spared all embarrassment or public

harassment: If, however, instead of, this initial investiga-

tion, 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 fiurts.

Thus, it is selfalelnsion to argue that somehow: the

appellee cin. this case, or any school: employee, would be

better off when a qaestion-ariseseas to loyalty, to be taken

immediately inte the meehanies of ‘the Pechan Aet.

“And then, aside from what the proceedure, in .either

‘event, means toa the employee, the proper administration

of the schools demands a prompt personal inquiry into

equivocal conduct on the part of an employee. In éxplain-

ing why he called August for questioning, Dr. Hover said :

“TL considered it important, first of oll, because I.

Wanted to discover, if T could, by conference and by

‘ conversation with Mr. August, whether or not’ the.

¢ .

, .

Opinion of Supreme Ct. of Pa. * ; 15

facts indicated inv the statements regarding August's

membership in the Communist -Party were correet, and

alse whether the rdationships indicated in the ques-

tions brad Hoe rststedl to the present tine. I considéred

them. important alse, or‘considered my desire impor-

‘tatt, Vecutse they hind be drina, in my estimation, on

thee Ale ss of My. eluvgast lo leoa head r ms the Phila-

debhaa Public Se boaeil? Sustem and it in my Fespotisi-

bility te mnake certain that the teachers who come into

the Philadelphia school system or who remain in it

*. ure fit porsous to be there. (Emphasis supplied.)

Sacha declared purpose can “only de commendable.

Any superiitendent, whe would allow ~tateme nts, or even

rumors, of disloyalty to go uninvestivated, would be dere-

liet in the performance of his duties. “A ship captain who

learns that a tember of his crew is making statements about

mutiny on ts biti fPeor nt te lis respon ~ibilitic = for the safety .

of the ve nel, would be a traitor to his own responsibilities

if he did net eall én that erew member and demand to know

if there was truth to the circulating. report.

~ In the Soler ease the school teicher was dismissed -be-

cause he failed te reply tu questions wuelv anced by the’ Super-

intendent or Pabliciustraction. He maintained, as August.

Wainiains here, that the procedures providing for dismissal

under the Mechan Net are mandatory and exclusive, Chief

Justice Deils binguone dof the Suter contention with the state-

PMaent that’ ‘appeuce Was, hot distnissed on the ground of

‘dislovaliy ; he was ‘dismissed on the ground of incompe-

fine y because of insubordination and lack of frankuess,

candor and intelleetual honesty." %

Justice Frankfurter, in his Concurring Opinion in-the

Beilan case, supra, and the case ot Lerner v. Casey, 337

tS: 465, said: ee

When these’ two employees were discharged, they

were hot lavtieled ‘disloyal’. They were discharged

because goveriine ‘tal authorities, like other employers,

fe ; . r _

_ Opinion of Supreme Ct. of Pa,

sought to satisfy themselves of the dependability | of

-employees in relation to their duties. Aceordingly,

dhey made inquiries that, it ix not contradicted, could

in amd of themselves be made. These inquiries were

balked. The services of the employees were therefore

terminated.” as s . °

It thus is settled law in this State that a school em-

ployee owes, the duty of frankness’ to h@# administrative

superior; and ix obliged to cooperate. Ta repeat the words

of Chief Justice Bell, a school employee may be «dismissed

because of “insubordination and lack of frankness, camlor

and intellectual honesty.”’ re et

Was Bernard August insubordinate! Did he exhibit a

lack of frankness, candor and fitellectual lionesty ins his

dealings with his administrative superior?) Essentially that

ix the key which opetis the lock on the answer to the ques-

tion involved in this appeal. .

In the case of Mbert Appe al, 372 Pa: 13, Chief Justice

Stern said: ‘ ,

“The Constitution of the 4 ‘ommonwealth, Article 10,

*- Seetion 1, provides that *The General Assembly shall

provide for the maintenance and suppert of a thorough

amd eflicicnt system of public schools.” Certainly: our

public school system is the most vital Feature of our

yvovertimental aid democratic system. In orderto have

"suc Aa ‘thoreugh and efficient system” those who teach *’

in the ‘public se ‘hools must le prerse Is not only of learn-

ing 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 hope--

fully will ever rest . 4

It is. vssential, in order te protect our children from

treatherous influences, that persons who advocate or

participate in subversive doctrines should not be ¢m-

ployed, or if employed should not be retained, ds

. -

Opinion of Sipreme Ct. of Pa, 17

a os = : ‘“ 7

teachers in our public school-, and any teacher dis-

missed for such a reason cannet properly claim that

au constitntional or lecal right is thereby violated.”

» When Superintendent Hoyer was informed that one of

Hix teachers was participating in subversive déctrines he

proceeded to determine at once the true facts by talking to

th school teacher himself. Hewas entitled te coope ration '

from him. itt accordance awith the mandates of the Con-

*stitution and the laws of the Commonwealth. Dyl he ré-

ceive it? ; : ae

The Court below held that Angnust did -give that ‘e4-

operation. 2 This conclusion on the part of the Court, in the

face of the réeord, sugeests a complete blotting ont of the

vast forest of Tact because of a few ~cracely trees of

Jo sophistes. The Court quoted from, Dr. Hoyer’s testimony.

and” from the indicated quotation, found that Dr. Hoyer-

lil not ask Aucaist any questions af the first iptery iew and

that. therefore, Ameust could not reply. Ib is. true that,

takiai apart from everything else in the record, one could — se

read from replies mace * by Dr. Hoyer, in one ‘circum:

scribed pait of the record, that August was not, snestioned.

However, when one redds the entire record it becomes as

plain is a pikentatl that \ucust was under interrogation at

. that first intyrview. Otherwise, why did he teh Dr. Iloyer ,

(hiit Jie Would speak to his o ounsel betore he decided whether .#

he wouldeauswer questions pul by Dro Jloyer? In fact, the

school teacher himself, De rnarel Aucueat, teestifiveed that Dr.

_Thoyer qiuplioned him. the ‘re is his testimony : 79

When L came into the re mu, Dr. Hover. . . said

that he had received certain\information which he felt

it wax his duty to question me about.: + . He said,

~ ft have certain questions that 1 wantto ask y gon. Isaid, -

What type of squestion! 1 would like to know what the. —

questions are betore | undertake tp answer them...

Mr. Soken, (Counsel for Vhilad/lphia School Board]

_who was present, interruptey4O say that there was no

Is Opinion of Supreme Cte of Pa.

reason why I had to know What the questions were

before I agremd to atiswer or refused to answer. Dr.

Hoyé, however, very politely said, I see-no harm in

letting him hear one ‘of the que stions. And the question:

Was something to the effeet, there is sworn testimony,

or something like that, to. thie effect that you were a

member of the North Philadelphia branch of the pro-. .

fessional <cction of the Communist: Party of Philatlel-

phia. And | said, weil, | would not andertake to an-

swer questions of thal sort wcthout first consulting an

attorney.” (Atalies > applies. )

Thus, Dr. floyer did put at least one question, and it

was only becaitse of August’s-refusal fo answer, that inore

were not forthcoming at that time. ~~

‘The Court misread the record in another connection.

It said: . :

“Ny second interview was ever arrangéd, neither at.

that time nor at any. sthsequent time.”’

Here ix Dr. Bot isl lestiniorey on that phase of the

case: eae ° *

"Q. Doctor, why was there a second conference ar-

ranged for? ;

A. The second contesenee was arranded Jocuuse Mr.

Aucust hack indiedted lis desire to consult counsel, and

of course Lacieed tohis request. (Emphasis supplied.)

Pod : ; 5 “

Thus, a second conference was arranged. It did not

binant on the tree of realty: becatise Anqcust killed the ,

roots of Hie tree with the frost of his definanee and hostility.

He telephoned Br. Hover and informed him that he would

het answer the questions whic ii Dr. Hoyer wished to address

to him. . a

But the iirc C fourt arvned: ; i.

“The mere receipt of a ielophone eall which purports -

to setup a future course of conduct, which. course ‘of

‘he was not-dumb. . The following episode will illustrate.

} P

conduct, was never tet dy cannot be softicient enitse: Poor

“dismisval. «Mr August shold hayg boom afforded the

o yportunit y to mert tacete face with he “pe rior Pe

em notice of the purssiole result of Wis persistent

refusal, be given the epppwort anit) tw te Wen beet ten

- | ; Je

Open sof Supre yale ( fg fr : .

This argument won, suyeest that Mr bers ws

child, Whenthe told: Dr. Heyer that he woyld net answer

* quesfions, after he Wiad cabresedy beet eich shavs to consider

whether he wonld auswer or not, certaink Dr Tbewor eoubd

assume that Aucust woul Lief answer ae tiem, ON Sn

ehave. be on an jnfantile y" ‘yteortiatien tor pere pare thie wine |

for another conference, in the fact pf Nucaiet’s refusal ta

> answer, and then on that -Tace of fytilits for De Mayor ty

attempt by cajolery, perausaaien camed inyppelied threat te set

August to answer.) -* :

Aifzuat Was no naive babe inepwerk beevie W ioaads Ihe Wile

a college gritdnate, he had beech a teacher for elchiteey sears’

He knew Enelish and he knew that Dr. Hever kitow Bneleh

Then when he, with the finality of a®@eax stréke, told Hr

IhLover he would gigt answer Ainestions. rt) ¥ faceste Piseer’

meetin on the scare <ulijeet tas defeured be the lower Gaourt,

would not only be saperthiof® bit inane and fatuens. 7"

It ix a strange arenment which eritierzes Dh dover for,

not ziving tH Awerust what, he + spur ned? Naenat did not want

‘another conference, Iwewai<e he knew that Dr owek in +

tended to talk to him, not ‘or the state of the wegther, buf -.

on the state of hi< attae iment to andania itheabouey.

_ Reflecting on the possibility of mths aa tanto ter face! iter

view, he saved face, as hen: ndoubteddy thonght, by staving

away. The record is clear that it was Anes! whe ee

the first conference and it wa, he Who ssmk tall frossitility

ofa second conference by telling. Dr. liv: that te all qnes

tions on‘the question of loyalty he would tard TL

though he indicated to. Dr. Tlover he would te deaf te afl

questions; if was very clear that in his’ Tite of, reasoning

a Male Opinion of Supreme Ct. of Pa

At the conference on October 14th Dr. Hoyer told

August that he intended’to read certain statements to him

about his activities infolvang loyalty, and he would then. ask

August to confirm-or refute those statements. August said

he would not answer the questions aid then added: ‘Why

should I admit anything before | see whether you can

corroborate it?’ This is like a person char wed with larecny,

who, being asked whether he has the purse-of the victim in

-his pocket replies: ‘1 refuse to answer that question until

IT find out if vou have any,evidence I have the purké.’

In this very exchange with Dr. Hoyer, August, exposed

his lack of candor and deficieney in those qualities of profes-

sional attitude, civie responsibility and appreciation: and

ideals On which Rr. Hoyer later rated hinr alverse ‘ly.

August’s wanting te know what evidence had heen athered

-on his ‘Communist activities so that hé could avoid making

damaging admissions on matters Which could not be proved

‘against him, was indeed a cunning piece of strategy, but “i

strategy which proved him to be more shrewd ‘than faithful.

Bernard August further objected to Dr. Hoyer'’s ques-_

tioning him beeause he said, such questioning was ‘‘un-

American” and “unfair”? This is another demonstration

of “August's lack of appreciation of the duty he owed his

school superiors. He explamed that he did -nat need to

answer beeatise Dr. Hogxer wanted to question him about

his ‘political aetivities."* Only a person as separated from

the history of the times as a shipwrecked sailor on an ice

floe i in the Arctic, only:a person at war with all reality and

living in a state of sheer perversity, only a person with a

brain so enslaved to Communist ‘ideology that he is deaf,

dumb and blind to the crueltiess inhumanity, and bestial

greed of Communism, as deereed by the Kremlin and en-

foreed by bayonet, bomh, treachery, barbed wire and stone -

walls throughout, the World, could say that membership in

the Communist -Paftvy may be, equated with what in the

United States vy. regard as ‘political activities.”’

> 4 .

re . °

Option of Sipreie Cr of Pa. 9]

The Communist Saude er | palitie: al peurty sit iy a

eriminal conspiracy deste med ‘and determined to destroy

demoeratic goveryment overywhere bat partienlarly in

America. This objective of the 4 ‘oummnnist Party has’ been

officially’ pronounced by Coreesress, by the Pennsylvania

ficial ee by the Federal Conrts and by the Pennsyk .

vania courts. This fect, althoush it looms acnainst the hori

zon of CONLETAPOrary history as eh “arty as the. Roe ‘ky Moun-

tains, the Empire gst ite Buildin: end the Washtirgton

Monument. vet necds to be re pente 1 heeause there are still

supposed|y edneated peerle whe will pindst, as did the ape”

pellee in this case, that te diyioneS hands te the armpits

‘into the muekvof Comimunis! i leodoes isoondy aa exereise of

one’s rights tosparticipate in@ palitieal activities.”

The Internal Seenrity Vet of 1940 (Publie Baw 831,

i: SIst Coneress, Chapter 102! 2nd Session) dyelares :

“The Communist orgunization-in the United States, ,

pursuing its stated objectives, the recent: successes’ of

Communist methods in other countries, and the nature

and control of the World Conmminist Meo cement itself,

present a clear and present dangtr te the seeurity of

the-United States and to the existenes of American ine”

“stitutions. ”* ons : a

The Pennsylvania Vet of December 21, 1991, Pt. 1712

proclaims that : :

“Upon evidence which has been presented and proof

which has already heen established before the Congress

of the United States, the federal eourt. of the TP nited

States, the courts of tie Commonwealth of Pennsyl-

Vania, and the General \ssembly of the Commonwealth

‘of Pennsylvania, there exists an international revolu-

tionafy Communist conspiracy which is conimitted te

the everthrow by. force and violence of the evovernment

‘of the U nited State ve of the several states, such con

e°

882, 425, Justice Jackson said:

y ~ Opinion of Supreme Ch. of Pa.

‘spiracy including the Communist Party of the Cited

States, its loca] components and fhe members thereat.”

(Emphasis. supplied.) 2. . ey

‘In American Communications Ass nv, Douds, 339. r, »

e ,

“The goal of the Communist Party is to seize powers

of government by and fer a minority -rather than to

acquire power through fhe vote of-a free electorate

_ It purposes forcibly to feeast. our whole social

and political structure after the Museovite model

. police-state dictatorship. Ht rejects the entire religious’

and eultural heritage of Wesfern civilization, as well as,

the American teonomic and political sVstemis.””

In the case of Pawel vr. Cin wmilowment Compensation

Board of Reriew, 146 Pa. Superior Ct. 148, 150, thé Su-

perior Court said:

oo) ourts have long ‘recognized and have taken judicial

notice that Communism, as a political movement, is

dedicated to the overthrow of the gevernment of the

United States (and, with it, the governments of the

States as necessary incidents im our system of divided

- sovereignty ae rer Destruction of other CXisting vov-

ernments by violenée is not the subject, merely, of a

seeret paet among Cynununists: it is the vaunted ob-

jective of the party _ ep declared by its recognized

spokesmen." ae .

All these pronouncements were made priorto the meet-

- ing of Bernard Aucust with Dr. Hover on October 14, 1952,

and the telephone conversation of October 22nd, so that. it

innot be argued in behalf of Angust-that he was unaware

of the gravity of the charge of having been a wembet of

the Communist Party and that, therefore, he eould not

_ know how important it was that Pr. Hoyer question him on |

-his Communist affiliations.

Opnion of Supreme Ct. if Pa. eae“ |

In view of these abovementioned authoritative pre

houncements on the seriousness of Commas activity,

AMivcust owed a bounden duty ty his administrative superior

in the Phikidelphia school system to werk with him in his

Investigation. of Communist infiltration into that > sehool,-

sveteti. instead of lending Tis serviers te the Suferjutend

ert he thoned his back on the investigation. His tat refupal

i tor isssint Pr, Hever in obtaining information on mat

peentiariv within his own gee «doe amounted to insub-

ers

erditiation as well as lack of frankness, cander and titel

leetoal honesty which anededs df tye to ieomipefence,

Heweve r. aside trfin Nagast’s knowWledee ii 152 of

ws htt the smamanisd Party slowed. for, he knew even before

Nee fered thie 4 ‘cnnitnitattist Party that i wa- oa fame in the

tn ef thie dragon ot the: SXeorkdwide Comminaist eriminal

coli pi rale vote destroy de anveratie cove riment in the Usted

Atte ‘s. if

dn hit testimony before the sc Board, Aweust said

that he joined the Commynnist Party i PUSS amed left at in

19500 Lowe prier to 1942 he. as an eae : and reasen-

ably informed nian conde Prot be tenorant of the «ubwersive

proesram of the 4 ‘ommimnists im the Tnited inte <,

As early a < P928, the Netoriously outstandin © and oan

lanietited late cane of the Communists in the United State-

Willianr Z, Foster, dechired from reedl-festooned platforms

throcMront the country :

Whena Comminist heads a government ti the Cautted

Stotes, and that day will come just as surly as the un

rises: that covernment will not be a capitalistie covern

ment, but a Soviet government, and behind this govern

ment will stand the Red Army, to enforee the dis tater:

shipe of the probe fora #2 ¥

* While Foster lay ill in a Moscow’ hospital whither jhe had:

traveled beeatire he said that the: Soviet. hospit: WS were better than

the America: ones, Klrushchey honored him, and pameye hastened «

his death, by visiting him at his bedside.”

een

24 — Opinion of Supreme Ct. of Pa.

As early as°1930, the United States House of Repre-

sentatives conducted a thorough inyestigation, with ex- ,

tended hearings, on Communism in the United States. On '

January 17, 1931, the Committee of the Whole House re-

ported that Communists advocate ~ c ”

Hatred of God and all forms of relizion.””

e . tt *% . . ee

*Destruetion of private property, and inheritance.:

“Revolutionary propaganda through the Communist

‘International stirring up Communist activities in for-

eign countries in order to cause, strikes, rigts, sabotage,

bloodshed, and civil war.”

Destruction of al forms ef representative or demo-

cratic: governments, including Civil liberties, such as

“freedoni of speech, of the press, of assembly, and trial

by jury.”’ : ; °

There must be utterly excluded any possibility, unless

it be decided that Bernard August is wholly devoid of in-

telHcenee and is a babbling moron, that he was not fully -

informed of the conspiratorial and revolutionary character

‘of the Communist Party at the time he joined it ‘and re-

» mained within its ranks. At the hearing in the A/Lert ease,

supra, there was placed in evidence a sample membership

card of the Communist Party whieh set forth the rights and

duties of Party mémbers as folhows:

To attend club meetings, read the Party press and

Hiterature, pay dues regularly and be aetive on behalt

of the program and policies of the Party. To participate

in working out all policies and tasks of the elnlt and to

regularly examine the execution of such policies. To *

strive to master the program and policies of the. Party,

the principles Sf Marsism-Leninism.** (Emphasis sup-

plied.) |

; Opinion wf Supr me OF, ot Pa, . 25

fi reading the ** party pren and Jiterature’’ Angust

perforce read and perhaps anemorized the ‘ommunist: Mani-

Yesto Which viv idiv apd bylligerenthy trum: pret its. battle ery

of revolution and blvodshed ; <

The Communists disdain to conceal their views and

aims. They openly declare that their ends ean be at

tained only by the forcible overthrow of all existing

social conditions: Let the ruling classes tremble at

a Communist revolution.**

The Communist, Manifesto was published in IS4s,

uinety-four years before August became a member of the

Communist Party, so that its exhortation to violetee was

common knowledge long before Aucust vowed allegiance

tothe red flag and the hammer and the siekle. ~ ss,

But, aside from what, August learned thitongh his .

studies of Communist literature and fraternizing with Com-

munists for eight years, he was theroughly aware when he

‘joined the Communist Party that he was defying the law of

the Commonwealth of Pennsylvania, his employer, and te >

which he-had pledged allegiance. -@

The Act of July 2s, 1941, PLL. 530, forbade the employ-

nent in any -capaeity, by. any agency or the Commonwealth

‘or any county; city, borough, tow nship or school district, of

any person ‘who advocated or participated ‘hy an overt act

or acts in un-American or subversive doctrines."* Any pets

son so employed was to be dismissed in the same manner as

provided by law for dismissals for other -causes.

The School Code of 1949, in reeng ting this provision,

omitted the words **by an overt act or ae ts.°? thas eby iously

demanding a more rigorous standard of lovalty. in respect

to teachers than for other public smployees.

The Act of 1941 gave a gencral definition of the phrase

“*un-American or subversive doctrines’* as ‘*doctrines

which teach or advocate” the overthrow of the government

of the United States or of the Commonwealth of Pennsyl-

26 iy - Opinion of Supre me CF. of Pas.

vania hy revolution or the changing of the fortn of govern.

ment of the United States or of the government of Penn-

svlvania by means not provided for in the Constitution of

the United States or in Tr ¢ ‘onsti}ution of the Common.

wealth of Pennsylvania.** *

_ Thus, from 1942 10-1950, Augastwas an HeTive tieiiber

of an organization whie ly taught and advocated -the over-

throw of State and National governments by unconstitu

tidnal methods... He, of course, kept his Communist member-

ship a secret from his employer. Tad that membership been

disclosed, he would have been subject to immestiate dis

missal, as Dorothy Albert was dismissed. Thus, for eight,

years, August wore the mask of deception, appearing to be

“a law-abiding citizen when in facet he was not. For eight

years he wore a cloak of fraud, appearing before the school

children of Philadelphia as a person whose conduct “and ,

behavior could be émulated as manifesting the highest Type

‘of citizenship, whereas, int fact, he was working with others

to destroy that school system which he had pledged: and

sworn to uphold. re

This deception is not extraordinary because Com

mnnists are instructed through Lerin's tenchings that ‘tit is

necessary... to resort to all sorts of devices, maneuvers,

- and illegal methods, to evasion and subterfuge,**

For vight vears August practiced his deception, lodking

toward the day when, under the Communist revolution in

the United States, pane to wW illiam.Z. Foster,

‘The studies will he volutionized: being cleansed of

rejizious, patrioti¢e, and other features of the bourgeois

ideology. The eee will be tyfight on the basis of

‘ —— °

— -

* The’ Act of 1941 and section 1122 of the Public School Code

of 1949 were in effect throughout the entire period August was -a

member wi the Communist Party. bee

** US Gost. Printing Office, Committee lrint, 84th Cong

Ist Sess. December 21, 1955, p. 13.

—o— yw

te"

Opinion if Saprene Ct of Pa. 36

Marxian dialectical materialism, inter rationalise, cane

‘ the sgenmencal ethies of the new See itlixt Sow 2h tees

ba hs "August tostifie, before the School Bocre that he never

attempted ty teach oun unintn ter Fii~ poemprds.. Mit this is a

ee serving statement. The Aum minist magazine of Mav.

re f- "37. reminded ifs Teachytes. Odin

se - a ‘onmunist tquchers aye, therefore, awed witha tre ;

Anetidens social responsibility Thes Must take, .

a; advantage of their positions withedt CN pring the TH

‘ees: Onits When teachers fave really mastered

Marsxi-m Leninism will thes be able ~killfully to a

tointe ther Verite badnece cit thee becast risk of © N pM rns

Dr. Bella rented, fertmer Communist tessehier Gated’ ~tate

: F . . 2 ; : ; a ; vee

legislative director of the. Communist Party fi New Vorb.

testified at a House Committe hearing.

The Communist teacher is Very clever at putting over

the Commirsist tdeologs. Youd be surprised at lees

some of the great heroes of American bias + leet pres

verted in the interests of Commggni-m.” ‘

“When she Was a-hedas comunittes counsel if -he felt ~ hire besued

intlieneed stucdent~ abet the (otmmuamist line. she reggie:

Pb weld have been a very poor Communist fd didgct' *

This recital of COminunist histers. methods cand pre

cedure is presented net for the qurpose of establstine

that August ’s dismissal wa- justified oot Three beaai- thant hee

Was a Communj=t. but to show that he was aware of whist |

othe Communist Party, of which hé was an active nyetitbeer

az Wis doing, and that he owed to his ied teat teist tat Ver sthpre Piet

the duty to divulge the information he possessed abiont th

Communist Party, especially in connection with fima-edt!

Hix refusak tocde so constituted, - already stated, ‘tie

eee eet. cmmnney aee oe —

° Hearings Haotise ts Ane rwcan Activities Cemmuttoe, Hear

ings Feb. 25, 27, 1953, p. w. ’

** Philadelphia Bulletin, November 25, 1953

‘

ate Opinion of Supreme Ct. of Pa.

subordination and lack of frankness candor and. intelectual

honesty.” .

> Ifis intellectinal dishonesty was éstablished quite ‘de:

visively not only by his attitude toward Dr. Hoyer but in

~~ his appearance before the Sehool Board. Despite the

‘Himalayan pile of documentary evidence to the coutrary he,

testified that wile he was a member of the Communist <

Party it-was a ‘‘legal ‘political party in the United States

and the Commonwealth of Pennsylvania.”* He said further

that while he Was a member of the Communist Party, the

Communist Party appeared ‘ton the offielal tate ballot of

Pennsyilvania.’’ ‘This is a total falsehood.

Section SOL of the Net oof July 28) 1941; PLL. 526

provides, inter alia: ' ; |

The words *politieal party’ and the words * political

body’, as hereinabove defin.., shall’ net include any

political body, political organization ‘or politicale body

composed ofa vroup of electors, whose Purposes or.

aims, or one of whose purposes-or aims, is the establish»

ment, control, conduct, seizure or overthrow of the

Giovernment of the ¢ age Jia of Pennsvivania or

the United’ States o Ameries by the use of foree,

violence, military measures, or threats of one or more of

the foregoing.”"

—Seefion 976 provides, inter alia:

* “No nomination petition, nomination pangr or nomina-

tion certificate shall be permitted to be Thad. if the’

political party or political body referred to therein shall.

be composed of a croup of electors whose purposes or

aims, or one of whose purposes or aims, is the establixh-

ment, control, conduct, seizure or overthrow of the

(iovernment of the Commonwealth of Pennsylvania or

the Uirited States of America. by the use-of force,

violence, military measure or threats of one or more of

the foregoing.”

Opinion of Supreme Ct. of Pa.

The Communist Party has not appeared on the state

ballot in Pennsylvania since 1940.

August endeavored to convey the inipression that dur-

ing the whole time he belonged fo the Communist Party it

participated in no illegal activity. He said that he did not

leave the party leeause of any conviction it Was part of any

conspiracy.” His whole attitude was that’ the “i thool author?

ities were in the wrong, arid not he, because Of the events.

of whieh he was the principal character. When -he was

asked by counsel for the School Board: ** Who got vou into

the Commun.-< Party 2"? he refused to answer the question

and then said that hix name had been pat through a

‘smearing.’ And then, in-self-justifieation, he added: ‘*I

did nothing to bring this upon myself that. | consider in

any way a disgraceful act.”’

He still refused to acknowledge that there was afiv

turpitude invelved in his being a member, for eight vears,

of an organization working against the welfare, the inter:

ests, the ideals and perhaps even the survival of the

American people. It was during the vears that Aucust

Was a member of the Communist Party that it perpetrated

many of its most pertidious deeds.

During this period the Communists stele the secret of

the atomic bomb efrom American iavoratories and tuted it

over to, Russia: Alger Hiss and other traiters bartered

government seerets tothe Soviet Union; Communists pene.

trated into the State Department, Justice Department! the -

Armed Forces: they took over mans labor unions employ.

ing workmen engaged in building submarines, radars,

electric machinery, all vital te the nation’s defense’: they

polluted many of the literary, artistic, radio and cinematic

streams for Soviet propagandistie purposes. Internation

ally (and the Communist Party of the United States is an

integral part of the world-wide commupist conspiracy) the

(* ommunists porpe ‘trated aggressions against many un-

offending and helpless nations: they illegally seized Tands

and countries ; they enslaved peoples in all their vast do-

oO. Opinion of Supre me Ct of Va

mains; they event ‘ually acquired a total of. one-fourth of

thy earth's land surface and one-third of its pypulation.

It Whs during those eight years when’ August could see ne

wrong in the Conununist Party in Philadelphia of which he

Was a financialpseeretary, that his Comununist comrades in

Europe were shooting down and killing unarmed American

flyers, imprisoning other American flyers and, by estab-

lishing a blockage of Berlin, Bringing shout the death of still

more American flyers ,

“The Communist Party in the United States, of which

hous Was a part, approved and supported (hese outrages.

> — It would not be an illogicafeorclusion that when \uzust

Was questioned by Dr. Hoyer he still beheved in the Com-

manist cause since he refused to give information which

would help Dr. Hover to ferret out other Communists in the

xthool system. He ‘declined to assist the authorities in

locating the Communist teachers who were still i ina position

to poison the very fountain of learning at) which the

schoo} children of Philadelphia drank.

The lower Court states that August ix entitled to /aius

poenitentiac, “it would seem that the Court interprets this

phrase to mean.a pardon, which, of course, it does not.

Locus poenitentiar literally means a place of repentence’

but generally it is used ‘to indie ude on oppertunity to undo

what has been done. -Bouvier’s Law Dietionary defines the

_ phrase as ‘ta chayee affordes to a person, by. the cireum-

_ stances, of relinquishing the intention which he has formed

tu-commit a crime, before the perpetration thereof." But

August ‘s offense has already been committed, x0 that there”

ix no way for him to re linquish the infention-of doing what

is a fait accomple. :

Black’s Law Dictionary defines locus poe nite nfiae as:

The opportunity of withdrawal from a projected con-

. tract, before the parties are finally bound gor of aban-

doning the intention of committing a eriine, before it

has been completed.’’ ; ‘ rs

e . . C ’

> _ Opinion of Supreme Che of Pa. - 2

Angust’? offense was completed when he refused to

show candor and intellectual honesty in dealing with his

superior, Dr. Hoyer. August acted improperly for eight

years and then when he was politely asked by his superior —-

to tell about those eight years he charged Dr. Hover with

being un-American and unfair! , How can a school system

be operated with any degree of efficiency, order and sue-

cess if school teachers de not show respect toward the

Superintendent of the school, the man who has the respon

_ sibility of maintaining order? ~ How can children he ex- |

pected to show respect toward their teachers if they Journ

that. the teachers themselves aresdisrespestfal to their

superiors? Communists are always questioning the mo-

tives, the sincerity afd the action= of. govermnent officers

% whether in legislative, judicial or executive departments

but when they in turn are questioned they protest that”

their right< are being infringed upon, and thaf their liber-

tives (which they deny to others) are being usurped. *

_« The lower Court seoms to be of the belief that it 1

_- enongh for an offending teacher to express regret and the

oe dagnage which has been done by his offense will be repaired.

No one can wainsay that mercy is a virtue and forgive Ness

*is divine, but it is not within the province 6f the Court of

‘Common Pleas to act aS a cefestial- Pardon Boaril, >It

would be extremely dangerons toe countenance a practice

. Which would allow’a teacher tosignore the superintendent,

flout his orders, defy his directions and spurn his antherity,

assured that if nothig untoward happens to the teacher

he has gained everything, and if, on the Mher hand, he

is charged with being contumacious and his job becomes.

endangered then he may eall for g convening of the School

Board (which means drawing from their respective offices,

Disinesses, professions and other activities <om® Score of

parsons) and tell them. what he re — to tell the Super-

Inlendent. 4

The Philadelphia school system aloes eight then-

< sand teachers. The chaos which would follow the approval

Oo.

i aa — of Supreme Ct. of ™

of such a practive is - appalling to jiaiemaglates No large -

organization can survive without orderly procedure and

gradation of responsibility. Discipline i is required not only

in the military. It is indispensable in every establishment

an etvilization if anarehy and catastrophe are to be avoided.

What would biappen in the transportation world (par-

‘ticularly’ the airlines and’ the ‘ailroads) if subordinate

emplayees canld freely refuse to carry out orders, the exécu-

tion of which means the safety ff countless lives?) What

shambles would oceur in hospitals’ if nurses and attendants

could refuse to obey the directions and prescriptions of

surgeons and doctors?) What would happen to all organ-

ized society if government employees’could close their eyes

to directives which control the intermeshing of the vast

———- gears.of Kos rnmental machinery?

The lower Court s4¥%s that locus poenitentiae is (em-

- phasis in Court’s opinion) present in’ ‘this: case because—

**Mr.. August Senta letter through his attorney to, the

School Board on December 16, 1953, offering to answer

all. questions that might be ,put to him by the School

Board or its counsel. roapase ; pa

It is difficult .to iseiesiddaalk how the Court, sees any

_ pe nitence in this maneuver on the part of ** Mr. August. re

. Thére is seareely a criminal who, upon bei ‘ing caught and

facing certain conviction, does not want to indo what he-

- did, so as not to,undergo’ the penalty which exceeds. the

‘gain he, thought he miight Have achieved. And then, the -

Court makes no mention of the startling chronology in

thix matter of the letter. When it was sent, August had

already; been suspended and charges of incompetency had

been filed. Fourteen months had expired since the date

of his offense. In gll this time he never attempted to sup-

ply Dr. Hoyer wight, the information which had been re-

quested of him.

It is perfectly obvious ‘that August’s assumed peni-

tence was a sham and a pretense. One who truly sorrows .

Opinion of Supe me Cl, of Pa. +

for having burnt down his reighbor'’s.shouse does not y“ait

until*the neighbors have been made ill from exposyre to

rain, siorm, snow and ice before le takes tools an timber

to rebuild what he destréyed. Even <o, Augisst

rebuild with a few drops of ink the house character

which he had fimself brought dow nin rus by turning

with good intention and kirid words, asked him to lake the

superior mto his confidence, °

And then, asa grotes jie sequel Lo a grotesque counter:

feit show of remorse, it is to be noted that the letter was,

not written ly August but by his lawyer and the letter

never even reached the School Board because it wis tmis-

‘addressed! a

Even if the Court of Common Pleas had the power to"

save Bernard August from the’ dismissal ordered by the

School Board on its mistaken concept of locus poenitentiac,

an exercise of such power could not be sustained leehuse

the record would not support it. It is not asimple matter

for one to betray his government and his fellow-countrymen

for cight years, then arrogantly to defy authority when

efiled to accouyt, then to accuse the offended party with

“smearing” tacties, and then for. the gnilty“person to

expect to be restored to a pesition of trust whieh involves

‘ould not’

. sf .

the teaching of children, the future citizens of America, on ~

the strength of the writing of a misdirected, impenitent

le 4 r which, tortoiseclike, takes. fourteen months in its

pr omg nd then finally sets off in the wrong direction

to an incorrect destination. The offense committed by Au-

ust und written large on the dlackboard of his. school,

-eannot be wiped away with so blundering, insincere ani

misdirected an eraser. . - -

The reeord in the case overwhelmingly establishes,

with a plethora of fact and law, that the Superintendent .

was not@rly warranted but compelled by law’ to ~nspend

Bernard August as a result of his conduct, the School Board

was. warranted in dismissing him because of that miscon

"C3

34 | Opinion of Supreme Ct. of Pa.

duet, and the Superintendent, of Public Instruction was

equally warranted in law in affirming the action of the

School, Board. ha

The order of the Court of CommmopgPleas No. 6 of

Philadelphia County is, therefore, uae and the action

of the Superintendent of Public Instruction in sustaining

the dismissal of Bernard August as a professional em-

ployee, is ‘affirmed. : ‘ ‘

Mr. Justice Jones files a Concurring Opinion,

j °)

Mr. Justice Cohen files a Dissenting Opinion.

;

. s {

° o ?

~ e

oP as re)

” 4 ~

a sf

, Ge .

Dissenting Opinion of Supreme Ctoof Pa.. 3

DISSENTING OPINION OF COHEN, J., OF THE

_ SUPREME COURT OF PENNSYLVANIA, .

Ficko: Jannary 17, 1962.

Coney, J.

Onee = as in Board of Public t. Aeration 1. Soler,

-Pa.--, -- A. 2d — (1962), a majority of this Court has

misinterpreted the etfeet of Board of Public Education v.

Intille, 401 Pao ly 16a XN. 2d 420 (1960). and Board of Public

Education ¢. Watson, 401 Pa. 62, 165 4. 2d 60 C1960) and

has overlooked the basie distinction betWeen an iicotipe:

tency interview and. a‘ loyalty proceeding. In this case,

moreover, aay, colleagues, have compagunded the error by

broadening the Mian, of “incom peteney even beware

‘the encompassing interpretation ziven that word. in the

recent Soler opinion,

The majority opinion in the presenti case indicates far

ther misunderstanding of the laws of both the United States

and the Commonwealth of Pennsyivania by. sugeesting that

futile and Watson in no way affected the interpretation

given by this ‘Court to incompeteney in Boardof Publi

Bdacation ¢.-Bethin 386 Pa sl. P25 4N. 2d o27 CR66), at

firmed 357 ULS. 290, 409; 2 Be Kad. ais 1435, oS S.C. Ts,

124 (1958). Tn affirming Beilan, the USS. Supregne Court

held only that the inte rpretation of “*ineompeteriey riven

“by this Court ‘tis not inconsistent With fhe Federal Con

stitution’? (357 Ul S.-at 408). This deeision in no way

~ precluded our Court from chitnging the “Se chante of

‘incompeteney, ! as we didtin Jatd/e and Wats:

Ti majority. here asserts that ugde rthe Ss Sule r decision,

a teacher's refusal to answer questions asked hy his adinin

istrative superior concerning. his loy: alty constitutes aaa)

competeney within the meaning of the Public School Code

of Mareh 10, 149, PLL. 30, Seetion 1122 et seq., as amended,

D4 PP, S. V1-Tez et seq. and? that the’ only issue involved

herein is Whether appellee's hehavior fell within the, judicial

3600 Dissenting Opinion of Supreme Ct. of Pa.

_proseription. One necd only glance at the le ngthy opinion

of the majority to realize that the real indeed the sole,

question in’ this case ceancerns appellee’s loyalty. Tf the

majority is concerned with incompetenes, there is no rele

vancy inthe detailed history off the Communist conspiracy

in this country and abroad. Similarly, if incompeteney is

the only question imvelved, the majority's attack on the

appellee for his affiliation With Communist organizations is

unnecessary. ;

-Wt is ironie that August's alleged incompeteney does

net arise out of his membership in Comme iist organiza: .-

tions. Indeed, he cannot be discharged. for sueh member-

ship under the Public School Code of 1949, but must be

proceeded against ino compliance with the Petiisvivania

Loyalty Act (Peehan) Act of 1951, Dee. 22. PLL. 1726, as

amended, 65 PLS. 211, et seq. Notwithstanding, the ma-

jority holds, in dofidines of logie, that appellee’s mere re-

fusal to answer his superior *s questions concerning this

membership, in and of itself, constitutes incompeteney. ,

What, says the ma jority, is the difference between a re-

fusal by a teacher tojanswer questions posed” by an admin-

istrative superior conce ring oye and questions concern:

ing immoral or criminal behavior?) Under the Pennsylvania

statutes there t isa very erucnl distine tion. Unquestionably,

_ a teacher’s refusal to answer his superior. regarding alleged

immoral or criminal activities would constitute insubordina-

ction and fall within the detinition of incompeteney under

the Pablie School Code-of 1949, 24 PLS. 11-1122. 1 agree

thoroughl¢ thatea s¢hool board is entitled to candid answers

from its.employees and that it can terminate the employee's

sti itis on the ground of Incompetence) v if ~ugh answers are

not forthcoming. Since the Public School Code cof 1949

does fiot provide a speeifie provedire to guide the admin. .

istrative superior in questioning teachers regarding these:

cmatters..the professional interview isthe proper indeed,

the only--plaee forthe superior to obtain this information,

Dissenting Opinion of Supreme Ct. of Pal 37

Concerning loyalty, howe ver, the: Lcstilatere on estab-

‘lished a detailed statutory proceaure to assist the admin-

istrative officer to obtain heeessary inform: ition ufider con-

ditions safeguarding the teacher’s interests. For this rea

son, questions regarding loyalty were exeeptel by the

explicit provisions of the Peehan Act from the matters

permitted to be raised in an incompeteney interview. — In

this one area, therefore, the Publie School Code of 1949

has been preempted by the Pechan Act.

The title of the Pechan Act states, An aet relating to

the loyalty te che United States and the Commonwealth of

Pennsylvania of public officers and employes, including

teachers and other employes of the public school sytem

: prohibiting appointment or employment sie saa

ing discharges after hearing in certain cases... nets

Moreover, Section 15 of the Act, 65 PLS. 225, provides:

“Effect and Applicability of het

(a) The provisions of this Net shall not affect the right

to discharge any person tor ang canse viher than

those pros ided for bu thes act or Without eause under

existing law 2.02007? (6 PLS. 225) (Emphasis sup-

plied.)

The majority states that its interpretationtof the Pechan

Act will not render the law impotent and tieaningless. Jt

then attempts to justify August's dismissal, patently based

on the substantive grounds of disloyalty without the cor-

responding safecuards of the Pechan Net, on the basis that

the soie question raised at the jotertiew was that of in-

competeney and that, consequently, the statutory require.

ments for a loyalty inquest Were Ulinhecessary ane inatpr-

plicable. Such a position misconstrues the basic meanings

of leyalty and incompetency and constitutes an indiserimi-

nate interchanging of these very distinet: words.

The Legislature in enacting the Pechan. Aet was well

aware of the charged atmosphere in which the Act was to

be applied. Consequently, to be discharged under the Act,

38 Dissenting Opinton of Supreme Ct. of Pa.”

“a person must be determined to be a ‘subversive person”

by a ‘fair preponderance of the evidence.”” 65 PLS: 217.

The difficulty which a School Board might have im mecting

the rather rigorotis burden imposed by the Act makes an

incompetency interview a much more attractive forum it

which to discuss the question of loyaity. This. Court, in -

Beilan, Soler atid the present case, approves this practice

even though it is contrary to the provisions of the Pechan

Net and though it destroys the distinctions between **loy-

alty’? and ‘*incompeteney.”” ‘

| Here, however, the majority even goes Sevond the in-

terpretatian of incompeteney given in Sefer. Un this case,

We neyéer reached the step w here-the teacher refused to an-

swer aquest tons posed by the administrative superior. Ap

pellee was dseharged without the superintendent having

is clear that an initial hearing was held in October, Toz.

At that time no-questioys were asked, and the superint smd-

ent efive appellee permission to refer the matter to counsel,

Subsequently, Angust’ phoned the superintendent and in-

formed him that under advice of counsel, he would act as

had other teachers aceused of disloyalty and would not an

swer questions concerning this subject. No questions were

asked during the conversation. Dr. Hover, the sapevintend

cent, never fixed a time for aosécond interview at which he

could propeund the questions he wished to ask. Appellee

Was justified In expecting an interv! jew before. he was sus-

pended: Without holding an interview at, which he actaaliy

posed questions concerning loyalty, the superintendent had

ne way of knowing whether appellee would actually refuse

toanswer. Indeed, at the hearing before the School Board,

the first oppurtunity he had to appear before an official

body, August did answer questions concerninis his assecia-

tion with Communist organizations. —

ka effect, the majority is holding that an administrative

Ssuperior can disvharge a teacher on the grounds of incom

peteney if the superior has reasen to believe tha! the teacher

will vefase to answer questions im futare. This is a most

- a

Dissenting Oprien of Supreme Ct. of Pa. . a

dangerous proposition. Althongh the present case coneerns

lovalty, the majority ’s position is ~eauls asapplieable in

a situation concerning immoral or criminal activity. Conse

quently, a teacher accused of improper activity wold: be

fired if he expresses relnetanee to diseuss the matter with

his superior, even though she latter may’ never have ques

tioned hing formally concerning it.

Mere suspicion of refusal is not suffieient: there murst

be an as tiyisl refusal to WS er fo constitute INCOM peteney,

oven Within the wide Interpretation given to that word bey

this Court. Homan beings change their minds. A teae her

must be viver.the opportunity at a scheduled interview to

refise to answer and must he on notié® that his refiisal will

constitute incompeteney, Any other position does vidlenee

tothe Daw Rrocess clauses of beth the Pnited States and

Pennsvivania Constitutions. 2° :

Tt isnot diffientt te lodge an emotional diatribe, as the

majority dees, against the Communist organization and its

. acknowledged conspiraey to conquer the world. When, how.

evers we approve procediines which vielate fundamental die

process, notwithstanding the fact that the Legislature has

provided an effeetive, direct and constitutionally sound al

ternative method for ridding ourselves uf these undesira-

bles, we-lose all sense of law and order, and, indeed, play

into the hands of the Communist conspiracy. The ma

joriuy opinion encourages such action.

The majority -asks, ** What would happen to all on

vanized society if covernment employers could close their

eves to directives which control the intermeshing of the

vast complicated gears of governmental machinery 2°" There

is an obvious answer to this question: Tf the procedures

provided by the Pechan Aet are utilized: such employees

would be eliminated from the scene. There ix, however, a

second result, much more destructive to all organized

ciety, whieh the majority. does not cousider: When, as

happened here; government »ficers ean close their eves-te.

statutory directives, the very fibre of our de qmoeratic ren

ernment is Weakened. °

7 , ‘ - *

40 (‘oncurrimg i Order Ea

4 > f 7 °

CONCURRING OPINION OF JONES, J., OF THE

SUPREME COURT OF PENNSYLVANIA.

Ficep: January 17, 162.

don Es, J. ;

1 coneur simply in the result reached by the majority

of the Court, a result, in omy'epinton, required by Board

art Publi Kida ation at By lan. ost Pa. s?. 12.0 ¥ al 32%, »

aflirmed 357 U.S. 399, 2 L. Ed. 1414.

ORDER OF THE SUPREME COURT OF PENNSYL.

VANIA RE PETITION FOR LEAVE TO FILE A

PETITION FOR REARGUMENT AND PETITION

FOR REARGUMENT.

Keb. 28, 1962. Petitions Denied. Per Curtam.

Fores plions fr: Adindu abv . . 41

COURT OF COMMON PLEAS NOL 6

Decemnen Teno, 14, :

—e- | , -

Now 8270. : ~

POARD OF PUBLIO EDE CATION, Setoor “4 1 «st

: aig . PeILApeLriia oe

BERXARD ALGOST. 4 Peorisstosan Eorerover or rire

Scitoot, Dasciter or Peape tenga,

Np Ihara.

-— oe oe

“ THE SUPERINTENDENT OF PUBLIC -INSTRUC.

TION. . ar rie

Asp Now. this dav ‘of February, Des, Meexann °

Avera. by his attorneys, Wises AL Woetnten, excepts te

the aedleudiestion of the Superintendent of Pustelic Drestrssetion

in the above entithesd ssatter a= follows: r 4;

1. The aed pacdteation erreneens in hebding that the

Net of December 22, 51. 1 1. t75 Vhe Pern ~v dv gars

Lovalty Net) is not fhe exelusive method of inquiry inte the

. levalts at poreiters sternal Crpolers ees of a School District-

2 Phe aebanebseation te erroneous i holding that a ve

fusal te answer epaestions a- a wWithes= before a efammitter

oot the House of Representatives of the Lo nited) Stule~ at a

Tine prior te the enactment of ine Net of December 22. 1951,

Po. 1726. i+ either e@telusive proet or seme evidence of

i eormpetenes ”* as that term ds clefinesd an D125 of the

School Cede (as amended ly the Net of 161, August hh,

Ft. a7 4%. 3 |

3. The adjudication is errenvous in helding that sad

refusal mentioned in paragraph 2 above is wither in itech.

y :

42 Ere eptions 0? Adyadication:) =

a Violation of the school laws of the C ommonwealth of Penn

~vIvania or seme evidence of such violation.

The adjudication ix erroneous in holding that there

rs Gens reside ‘nee in this reeord of ineompetency on the part

of the appellant.

9. The adjudieation is erroneous in holding that a

Superiniendent of Schools has the power, simply by asking

‘a question of a professional employee, to place mpon said

eniplos ee the burden of dixproving a charge of incompetency

“ual ae ut hearing before the Board of Education.

The sd taal ation is erroneous in heiding that an

action sae a professional employee, oeéuring in an academic

vear for which, after the action has been brought to the

attention of the Superintendent of Schools, the professional

employee was rated ‘*satisfaetory’’ on the rating eards

approved by the School District of Philadelphia and the

Department of Kdueation of the ¢ ‘ommonwealih hy the naid

Superintendent, may, in a subsequent ‘acade mic year, be

used as a basis for dismissal of the said employee, either

apon the ground of inecompeteney or that of wilful and-per-

sistent violation of the Sehool Laws of the Commonwealth.

The adjudication is erroneous in disregarding the

‘Tact tho there was no refusal to. answer questions asked

by the Board of Bdue ation ai appellant’ s hearing.

s. The ad jndieation ix erroneous in disregarding the

statement of the Superintendent of Schools made at the

hearing before the Board of Education that after Dr. Hoyer

stated that he proposed: to ask appellant questions, Dr.

Hover did net thereafter make an appointment or other

meeting and aetyally ask any questions which appellant

re fused: to answer. .

The jd jadieation « is erroneous in hols ling th it, with-

out ‘Speeific and clearly defined authority in the statutes of

the Commonwealth or Valid regulations issued * pursuant

E yeeptiins ty Add juatic aftum = * 4B

thereto, a professional. Oe ee of a Sehool District mys

be dismissed for refusal to answer questions of the Super

intendent of Schools relating to. his associations= or beliefs,

past or present: Such holding violates the School Cod. of

the Commonwealth and ‘the Due Process provision of the

Fourteenth Amendment to the Constitution of the United

States, as well as Article 1, . 4 of the Constitution of “the

( ‘ummonwealt h.

¢ 10. The adjudigation is erroneous in that it overlooks

-the faet that appellant was subpoenaed before the Louse

Con American Aetiv ities Comyuttee after he had been sus

pended by the Supe ‘rintendent of Sehools and that appel-

‘lant’s refusal to answer certain questions at the louse

hearing occurred during appe ‘Hant’s suspension subsequent

to his being charged but while fie was waiting for hearing

before the Board of Educ ation, oat

The adjudication i is erraneous for there is no evi

dence offered before the School Board that-appellant tad

been a member offer assoc dated with any political party

oy association while that political party or assoc lation Wats,

not a legally’ duly constituted political parts Within the State

of Pennsylvania. ¢ 5

s 7)

12. The adjudication is erroneous in that a fails te take

into consideration appellant’. excepiton, taken during the?

course of the dicaring before the School Board, to a retusal .

to permit appellant to offer evidence to establish that eer

tain members of the School Board were partial, and in the

absence of bet ing permitted lw produc e such evidence of

partiality to be assured that toe hearing Wa~ conducted by *

an oe Board.

The adjudication is erroneous in failing to take

into. gees ation appellant's exception to being denied the

issuance of subpoena for the attendance of witnesses of sas

selection before the School Board.

+4 7 + Eareptums fe Adjudu Otienu

ls. The adjudication ix erroneous in that it fails to

consider appellant's exception that he was sugpended dur-

ing the period from’ November 23, 1953 until his hearing on

March 22, 1954 aud during his entge period of suspension

there had been no determination by the School Board that

-hé showd be discharged.

» 1s. The adjudication is erroneous in that it fails to-

pen ‘rT appellant's exception to the fact that even though

. the heari: ¢ before the School Board was on March 22, 14,

appellant lid not receive notice of the Schoo! Board's deter-

mination to discharge appellant until April TZ, 1954, which

period of time is in-execess of the statutory ten days during

which the S¢hool Board may consider question of discharge —

after hearirg.

- 16+ The adjudication is erroneous in that it fails to note

that fhe act vpon which the discharge was based was the ae-

ceptance by appellant of the advice of counsel after ap-

pellant had been advised by Dr. Hoyer that appellant might

seck the advice of counsel prior to answering any question=

which Dr Hoyer proposed asking, and that in fact Dr.

Hoyer never did ask questions until aftgr appellant had been’

suspended, and that the first time the questions were asked

was at the hearing of the School Bourd at which dime appel-

lant answered all questions.

17. The adjudication, ix erroneous in holding that, a

pleading of the Fifth Amendment is evidence of incom.

petency when that pleading of the Fifth Amendimeat oce urs

subsequent to suspension and charge and while‘awaiting 4

hearing before the School Board-ow the items contained in

the charge.

Respectfully oubualtind,

7 — Witiats J. Woorston.

, Attorney for Appellant.

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