# Petition for Writ of Certiorari — H. B. Ives Co. v. Commissioner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0273%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 370 U.S. 904 ## Text ke - Office: Supreme Court, US. ho | re G dsireses ; ¥' . rl : . APR 14 1962 » es | Supreme Court of ‘the United ) States aa : - f. | 4 October Term, 1962. i os 874 BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA , =. v. ——......_ 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. _ « 2 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 ta IN THE Supreme Court of the United States. ° 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 uo \ 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 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. a ‘ . 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. A. 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)° ——_——— 9 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.) D 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, i . fe ; . r _ g _ 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 - . - 2 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 S 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 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. a “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 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 ye ‘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 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 et 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 — 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 rightIt 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 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 v, BERXARD ALGOST. 4 Peorisstosan Eorerover or rire Scitoot, Dasciter or Peape tenga, Np Ihara. 4S -— 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 : a rd 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 rn 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0273%3A2. Public record. Not legal advice.