Petition for Writ of Certiorari — Litteral v. Indemnity Insurance Co. of North America

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onicd Su Supreme Court, U. ay

Pen Be COURT. U, & FILED

Q APR 27 1982

«JOHN F. OAWIS, CLERK

Supreme Court of the Anited States

October 1961 Term

7 No. . 911

“> '

WILLIAM G. SOLER, © |

A ‘ ; ; Petitioner, -

v. ¢

BOARD OF PUBLIC EDUCATION, SCHOOL ‘DISTRICT

a PHILADELPHIA,

avian

— —

PETITION FOR A. WRIT OF CERTIORARI TO

sTHE SUPREME COURT OF PENNSYLVANIA

OsMOND K. FRAENKEL;

A. Haney LEVITAN,

Attorneys, for Petitioner,

120 Broadw ay,

New York 5, N. Y.

‘TABLE OF CONTENTS

: ‘ & PAGE

= |

THE OPINION BELOW ........... imetaseonecess ere 1

Tue GkouNvs OF JURISDICTION ............. Widewvaks 1

QUESTIONS PRESENTED FOR REVIEW .>.................. 2

_CONSTITUTIONAL AND STATUTORY Provisions INVOLVED 2.03

Z “9 .

STATEMENT OF THB CASE ........ eatin nie aaated Fares 3

“ RAlsep ...... woavens ppadeaeee be ceseerrer ences que B

REASONS FoR GRANTING THE Writ ...7.....2......... 6

APPENDIX A—Opinion of the Court ........ Eee pare 15

APPENDIX B—Constitittional and Statutory Provisions

Involved oegeecee piesetepeesis aeuene os Pen Bie

“APPENDIX C—Extracts ‘from enna to Court of Com-

. . mon 2 errr ryy Per reT Tre rer Paeeses A

--__ Appenpix: D—Excerpt from Petition for Rehearing Be- /

- fore Supreme Court of Pennsylvania .... 36

oo " &

a. Cases Cited — -

, - % "PAGE

“Beilan_v. Board of Public Education. me TS 309,

DN cen cawssdese) 46 seab eae ekess 2,5, 6, 7.8. 8.9, 10, 11,15

Beilan v. Board of Public Education, — Pa. x? eee ¢

Board of Edue ation v: $ntille, 401 Pa. f, 22 ...... ee

Board of Education vy. Ww iliam G. Soler , 406 Pa. 168 -

Se ee as es ve ao kb ooo ds Cane bus kerb eabs 1

~ Board of Public Education y. Watson, 401 Pa. 62 ae

Brown Case, 151 Pa. Super? 522, 30 A. 2d 726, aff'd .

347 Da. HIN, ey as SE enn tV ss Pan bimee nebee 10

Chandler v. Fretes, 348 U. MBit caoorsseee reeks iZ

Cohen ¥. Hurley, 366 U. 8. 117 ......-. ieee pus 12

Cramer Vv. 5 see States, 325 U. ¢. Sereaves ves seoe 6

+ Groban, In re, 352 U. 8. 330. B82 0000... Peers

Konigsberg v. State Bar of ( ‘alifornia, 353 U, 8. 252, .

366 U.S: _Y aaeere co atecemaue so eee eee 6,8

Lane’s Appeal, 141 Pa, Super. 259, 14 A. 24-573 3... 10

‘Reynolds v. Cockran, 365 v. B. 525 nageweivey ° $2

Xlacpower v. Board of Higher Education, 330 U. 8S.

DE a OG va a needs 4b Oe bad BOREL GSS HO VERO rena y

Stromberg v. California, 317 U. Ss. 287 iecedes .»+ 6,9, 10

‘+ Swick v: School District, 141 Pa. Super. 246, 14 A.

cl ai inlay ss: ee)

Yates v. United States, 354 U. 8. 298 ............06. a

: ifi

a : ee ¥ , ees

. Constitution . Cited

a) . oat eo. >

14 Amendment--Due Process SOUP -cvaviscecces 3, 2

‘ Statutes Cited _ Ee

, 28 U. GO. §IMT(S) |. 0.5 Eccl 1

: PENNSY LY vANIA Loy ALTY Aer: ff ee.

~ ——" Net of 1951; Dec: 22, P. L. 1726, §§ 6,7, 10 ..4..... 3,4,6

65"Purdon’ ’s Pa. Stat. Ann. §§ 216, 217, f veep eas eae

TPAC ‘HER'S TENURE Act: * - ae ‘ ss

seit a Act of 1949, March 10, P.L. 305 4a Tart. XI; §§ 1122,

Cae eee enero r ry often gee —

S. Act of 1949, May 9,2. Le 939° $4 aed er

o4 Purdon's Pa. Stat. Any. ‘$3 11-1122, 11-2232(b)-.5 3,40

\ . 4 4 . ad

. «/ SY . ¥

, by

, ri

” : ee

. x

- ?

. y) ¥ t

texiin Cot of ihe, ited States

October 1961 Term , ey

No.

—™-

. —

WILLIAM G. SOLER,

ales Petitione,

7 a +

Boar or PusLic. Epve wtiox, Scitoo. Disraicr

OF PHILADELPHIA, ‘

Rexponde al.

- PETITION FOR A-WRIT OF CERTIOKARL TO

THE SUPREME COURT OF PENNSYLVANIA

_ To the Chief Justice of the United States

‘and the Associate Justices of the

United States Supreme Court:

Petitioner respectfully asks this Court tu- issue a Whit of

certiorari to review the final judgment of the Supre me Court

of Pennsylvania which upheld petitioner's dismissal from

the Philadelphia school system.

The Opinion Below

The opinion of the Supreme Court of Pennsylvania’ is

reported in 406 Pa. b68 and 176,A. 24 653. A copy is herete

annexed in Appendix A (infra, Pp. 15-30).

The Grounds, of Jurisdiction

(i) The judgment aes, lo he reviewed was dated and

entered on December 29, 1961.

(ii) A petition for rehearing. was entertained by the Su

preme Court of Pennsylvania and denied on February 6.

1962.

(iii) Jurisdiction of this Court is invoked under 2s

U. 8. C. § 1257(3).

/ Questions Presented for. Review

1. Whethe? the dismnixsal of a school teacher for, alleged

incompetence resting entirely on his refusal to answer ques-

= tions about possible Communist connections . ix consonant

with due process when the teacher was notified of the

authority under which he was being pai or warned

that refusal to answer ‘would be deemed é¢idece of incom-

petence or might result in dismissal. ‘ :

2. Whether the dinaniaéhi of a se hool teacher js. consonant

with due process’ where the decision of the school board-

rested, without distinction, on alleged incompetence and on *

the teacher's plea. of self-iner iminiation before a ¢ ‘ongressional

committee. , .

: 3. Whether the dismissal of a school teacher for alleged

_ incompetence is consonant with due process when it rested

‘only on the teacher's’ statement that he would not answer

questions about possible Communist connections unless given

ar opportunity tu'consult counsel about them.

4. Whether‘the dismissal! of a school teacher for alleged

incompetence can be sustained when actually motjvated by

- the teacher's plea of self. incrimination soiree eso

f committee.

5 OW hether Beilan V. Board of Publie Edication, BT |

U. 8. 399. should not be overruled.

Constitutional and Statutory Provisions Involved

Only the citations of the constitutional wud sti tory

provisions’ are ineluded here. The full text ix printed in

Appendix B hereto cat iat ve. 31-33). The citations are as

follows: : :

Due Process Clause k

U.S. €., Const: Amendment 4.

Te: achers’ Tenure Aci

* Act of 1949, Mareis 10, 2. L. 30, art. X6, #£ VI2e,

1132(b) 51 1945, May 9. P. L. 939, £4; 24 Purdon’s

Pa. Stat. Ann. $$ 11-1122, 1L-1152(h). a

Pennsylvania pone Act

Act of 1951, Dec, 22. P. ea 175, $86. 7. 1M:

65 Purdon’s Pa. Stat: Ann. $§ 216, 217.

* Statement of the Case ee

‘Petitioner had. served. as a teacher of English in the Phila-

delphia school system from 1929 until his dismissal mm 155

(65a). * On May 28, 1953. he was called. to the office of the

Superintendent of Schools. He w was told he ‘would’ Ine aqines

— tioned about his loyalty (Ta, 60a, Gla) and asked if he bad -

been an active ¢ ‘ommunist in January 1952 (Tas. After ob

* taining an opportunity to consult counsel (Ta, 8a}, he came

_ back on June 19, 1953 and stated that he was not a member

of the Communist Party in January 1952 (8a). According

to Dr. Hoyer, the Superintendent, he then said “he could net

answer any siinilar questions unless T would pros ide him with

the questions so that he could take them to counsel for his

consideration” (Sa). This Dr. Hoyer refused todo and

that ended the interview without any questions having been

* usked (Ra, 9a). No charges were preferred against petitioner

at that time (50a). Up to this time petitioner's ratings by «

his principal had been satinfac tory, the last-af these having

* References are to folios of the printed Appenddis

been dated dye 26, 1953 (48a, Soler Exh. 2 > -106a). And he |

continued te ‘Teac h wii November 20, 1955 (oa. S

On November 17, 195 ed petitioner: was called before the — .

Un-American Activities Committee (Ma). The transcript

of the hearing (read into the record at the School. Board

hearing, 12a-26a) shows that when asked about Communist

Party mé@mbership he pleaded the Fifth Amendment. (19a,

20a). . Then, for the first time, a rating of unsatisfactory

Was given, dated’ November 20, 1953 and signed, not by peti-

tidner’s principal, but) by’ the Superintendent, (see Board

wrote petitioner summarizing the two interviews of May 28

and June 19) and stated that petitioner's refusal to answer

questions showed “Iek oof professional fitness’ and his

conduct” before the House Committée showed Slack’ of a

‘sense of civil responsibility and public duty” (12a, 13a).

Formal charges were then preferred by the School Board

(2a- -4a). These, for the first time, referred to petitioner.as

: “incompetent” (3a). These Charges referred separately to

the ‘interviews with the Superintendent and the appearance

“Exh, 1, 10la). On November 245 1953) the Superintendent

before the House Committee as evidence of inconipetency. A .

hearing on these charges was held on May 3. 1954 (5a-10Ta).

On Jiine @ 1954 the Board adopted a resolution that the

‘ “charges” were sustained and that petitioner should be .dis-

“missed (1092). There Wes no separate finding With respect

to either of the two aspects of the charges. This resolution

was confirmed by the state Super intendent of Schools (110a

114a).

From the latter determination an appeal. was taken. in

accordance with Pennsylvania daw, to.the Court of Common

Pleas (133a). -‘That Court held. (1407 the dismissal unjusti-

fied under Pennsylvania law on the ground that in CASES

dealing with Joyalty the proceedures specified in the Loyalty

Act of 1951, P. L. 1726, were exclusive, relying on a siatement

in Board of Public Education Vv. ‘Intille, 401 Pa. " (157a).

* Inthe Court of Common Pleas the Se ‘hoo! Board "a cone eded

“ a e

St.

that the second ground ‘for dismissal, to wit, the’ plea of the

privilege before the Committee, Was not tenable (135a, ida.

The Supreme Court of Pennsylvania, however, overtdhing ii

own stateinent in Intille, reversed and held that the refusal

to answér the Superintendent justified dismissal for iMeon

petence (infra, Lott). One judge dissentéd (infra, 261).

The Manner in Which the Federat

Questions Were Raised

“On petitioner ‘s appeal to the Court of Common Pleas hie

challenged his dismissal as a deprivation of due proe uss in

violation of the Fourteenth Amendment. The pertiin Hh par

tions of. the appeal are set fyetht in Appendix Co cifrada, pp.

34, 35). .

The Court of Common, Pleas did not deal with the cousti-

titionak issues since, -basing itself on the state Supre

Court's decision in Intille, supra, it set aside the dis

missal for failure to ‘comply with state law. Consequeat!s

the appeal to the state Supreme Court dealt only:with that

subject and the majority opinion contained no reference -t

any constitutional issue. But the dissent referred ‘to sais ‘

process of law” and a“ rigid adherene eto the federal cost

tution (R. 31).; However, after the decision by the state:

Supreme Court petitioner filed a petition for rehearing whic!

specifically raised the constitutional issues here embraced it

the “Questions Presented for Review” CR. O14). That peti

‘tion was entertained by the stage court, though denied with-

out opinion (R. 15). ,

In his petition for rehearing petitioner pointed out that.

the constitutional issues had not previously been prese nites

to-the state Supreme Court “because they were unnecessary

to a determination of the issues framed by the: deci ision of

the. Court below” UR. 10). .Thereupon, petitioner raised

three federal constitutional issues (R. 10-14) as set ‘forth in

Appendix: D (infra, p. 36).

Reasons for Granting the Writ — .

1. The decision of the court beJow is at variance with this

Court's holdings f® Aonigsberg Vv. State Bar vo} California, -

S53 UL S. 252, 366 0. 8. 36, and Beilan vi Board oj Public

Education, 357 U.S. 399, in that in each of those cases this

Court stressed: the need for proper notice or warming ante-

cedent to action for failure to answer questions,

» The decision of the court: below is at variance witT

this Court's decisions in Stipmbery \. Caulifocnia, 283 UL S

359, Williams v. North Carolina, BIT USS. 287, Cramer v.

United States, 825 U.S. 1. 36, n. 45. and Yates v. l niled

States, 354.UL S. 298, in that a dismissal resting on two

grounds has been sustained. although the second of these

sholild not have been vonside red and there is nothing in the

record to in@ggate whe ther the Se hook Board would oi dlis-

missed had only the first of these’ been considered by

3. The decision of the court below that cae

not entithad to the advice of counsel of, his own choice raises

a far-reaching constitutional issue of gr eat public importane od

which shguld be, and has not been, passed upon’ by. this

Court.

4,5. The decision of this Court in Beilan, supra, in effect

uphekl a dismissal for aalieged incompetency which actually

resulted from the teacher's plea of his privilege be fore a Con:

gressional committee, We respectfully suggest that the de:

cision was wrong, that the views of the dissenting justices .

are correct, and that the case should be overruled. .

. The Superintendent of Se ‘hools proposed to’ inte rrogate

eae about his loyalty. to the government 6f the United

States (7a, 60a, Glay. The purpose of the inquiry was to

determine whether his lack of loyalty was such as_ to

adversely affect: his contractual right to be retained as a

school teacher (3a). Petitioner could, therefore, reasonably

conclude that the authority tinder which the Superintendent,

punishable by disimissable (sec infra, pp. Oboe.

proposed to question hinr was the. Pennsylvania Loyalty Act

of 19351. That this was indeed a reasonable. conclusion is

seen by the declaration of the Pennsvlvanne Supreme Court in

Board of Public Education V. Intille, 400 Pa., 1, 22, 23: Board

of Public Education Vv. Watsou, 401 Pa. 62, and by the deci-

sions of the Courts of Common Pleas of Philadelphia County

in this case and in the Beilan case. But, under that Act, a

refusal to answer questions could, at most, result in a pre

ceeding instituted to determine whether petitioner Was a

“subversive person” as defined by that Act. For nowhere did

that Act suggest that a refusal to answert without more, Was

At the same time, petitioner, having temirg aud beste sie

ject to disinissal under the sjiecifie grounds of the Public

School Code of 1949. might have assumed ‘that the imquiry

related to his professional fitness, o1 “incompetency”. as set.

forth in that Code (see infra, p. 31). But onee agains Ahiiat

Code nowhere suggested that a refusal to answer wither

nore, Was proof of ineoinpetency.

Petitioner, consequently, was totally unaware Jiuler

what spécifie authority the Superintendent was inquiring

and had no idea that he was running any risk of dismiss] in

refusing to answer the questions, The Superintendent gave

oye RgeppeHt no reason to believe that the refusal to answer

would lead to dismissal, either under the Lovalty Act or un-

der the School Code. Given the statutory scheme Which con. -

fronted petitioner and the resulting uncertainty of petition:

ers position tinder either or both Acts regardless of his -re-

sponse to the questions, we suggest that petitioner's loss of

tenure, position, livelihood and status, for failure to answer,

was without due process of law. :

The Beilan cage, 386 Pa. 82, did of course later hold that

the questions were put under the Public School Code of 1949

and that the failure to answer was incompeteney. But the

total lack of proper notice. and warning nist be determined

as of the time the inquiry was conducted, and cannot be cured

by a subsequent holding of a state court. \ |

‘

Moreover, in Beilan there was, as this Court noted i in up-

holding the dismissal (357 U.S. at 1UN). a specifie warn

ing of the possibility of dismissal for refusal to answer, a.

warning wholly absent here. We stibmit such absence is.

sheer denial of due process. .

In the first Nonigsberg case, 353 U8. 252, this Court cat

259 and note 12) set aside denial of adinission.to the bar,

based on alleged lack of good ¢ ‘harae ter, and pointed out that

there had been no intimation that petitioner would be denied

such membership merely because of hits failure to answer.

And in the second case, 366 U.S. 36, the later action of the”

examiners was upheld expressly on the ground that there had

been adequate warning of the consequences of the refusal to

answer (at. 48). There the Chairman oi ‘the Committers

expressly stated, at the later hearing. that failure to answer

“would arent our investigation and result in our failure

to certify you.” - ;

Here, on the other hand, “there wax no such warning.

Thete was not even a statement that failure to answer would

be considered evidence of incompeteney, All chat the Super:

intendent did was to tell petitioner that “my future ¢ ourse of

action would be determined by the results of the > conference” ,

(Sa). That was no more than the remarks by committee

members in Konigsberg thai the failure to answer “would

have some bearing” on the ultimate determination—which

-this Court th mind insufficient warning (353 Ul S. at 259,

n. 12). >

We submit. therefore, that there was a total abse nee of

notice or warning. This absence is partic ‘ularly signific ant

because oftthe fact, that the inquiry: was in the area of lov-

alty and that Pennsvivania had prescribed spec ial procedures -

for dealing with such an issue. A teacher asked questions

-of this kind mjght well have thought that he was running

the risk of loyalty charges which he would be willing to run,

believing he could vindicate himself. That such belief was

not unreasonable is evidenced by the decisions of the Court of

Common Pleas in Beilan and in this very case as well as by

; > -

Pa 0

the state Supreme Courts decision in Intille, supra, Cei-

tainly there is nothing in this record to justify any inference

that petitioner Was aware that he was going to beeline sod

with incompetence and might be subject to dismissal. | sade r :

such ¢ ire wtnstane Cs the dismissal was a deitial of due process.

The issue is of ‘the greatest importance to all public sory:

ants and warrants full consideration by this Contt.

2. The determination here being questioned was mune if

the first instance by a lay board ou ‘Che daais of (Wo distite

charges, one involving. refusal to answer the Superintendent.

the other based ona plea of self-incrimination before a Cove

gressional Committee (ay. The record shows noe separace

vote faken ly the Board on either charge. With re Tr i either

to guilt or punishment (109a). .

It is clear, 6f course, that the dismissal coutd not be su

tained on the anree charge: Slochower \. Board 0 Higher

Education, $90.0. 8. 551 That has, indeed, been vecosnize §

by the courts of Penney Iwania: Board of Public Education \.

Intille, supra; Board 6) Public Education \. Waison. sapere,

) that in the instant case the Board conceded _ in, the Court —————

Common. Pleas that * “the second ul ground tor eLisstnaisesctt inne

longer tenable” (134a).

We contend that in line with the Stromberg see ‘other ;

cases cifed above the Board's determination camel sti sued.

In. those cases jury verdicts were Bet asidecheyause oe one |

could a whether or not the verdicts re —— il

cred. So here fo one can tel aes Board’ Seton

rested on the second ground which it ate ho right to cou

sider. We believe that the principle applicable to juries is

equally Applicable to lay agencies such as Boards of Educa

tion. . 7

* “€ ; 7 /

We recognize. of course, that the same contention: Was,

advanced in Beilan and_ rejected by the majority of the Court’

(3o7 U.S. at 402. note 3). though stressed da the Chief

Justice in his dissent (id. $12)-—a — concurred in by

Justices BI: wk and Douglas. But we respectfully submit that

the decision of the majority | rested: On a Ibisconiee tion of the

applicable state law and that in any ease it is wrong atid

should be overruled.

The basis for the thajority’s position in Beilan appears to

have been that the ultimate determination of guilt onc valid

ground was made by the Court of Common Pleas’ Ieee wUNe,

under the Pennsylvania statute, it exercises. “le ypvo”

review: of dismissals. There are. however, two fallacies in

that argument. In the first - place, the Court of Common

Pleas can exere ise'™de nove” gurisdietion only at the instanes:

of the dismissed teacher. The statute, 34 Purdon PLALszeb).

states With respect to the appeal to that Court: “EE the pre: ;

fessional employee agg@ieved shall so request in his petition,

sie ‘hi hearing shall he de nove” ssee infra, p. a5). fia such

a case the Court of Comnion Pleas acts inde pendently of

the Board of Bdueation aiid fhust make findings of fact of

its own, and se procedural errors befor’ the Board are irrele-

vant. NSmrick vy. School District, AL Va, Super. 246, 14 A. 2d |

soe; Lane's Appeal, IAL Pa. Super. 29, Pf A 257s. But

neither here, nor in Beilan, did the ttac her request a de hove

hearing. hor Wis one held.

‘In the second place, and more important. in both Beilan

and the case at bar the Court of Common Pleas set aside the

dismisgal. There -was, therefore, ny finding by that Court:

that a disntissal had been justified on the only possibly valid

ground, no, partic ipation by the Court in the dismissal Se

there is no reason Why the general rule of Strombera, vt. al.

should be disregarded.

Per haek word should be® added about this Court(s state:

ment (n. 3 at 402/ that “A dismissal can be sustained if the

Court finds support for any one of the. multiple grounds re-

lied upon by the dismissing school board,” with the citation

of the Brown case, Lol Pal Super, 522, 30 4. 2b a: %. aff'd.

347 Pa. 418, 32 A. 2d 565. In that case the dismissal had

been set aside by the state Superintendent. The Common

Pleas had upheld him. On an appeal by the hoard the Supe-

Nee

rior Court reversed and the Supreme Court aftirmerd. The,

only issue was whether or not ill health constituted ground

for dismissal for incompetenes. There wars no Contention. rs

here and in Beilan, that the school board had voted te dis

miss, on the basis OL any matter it Was diet conpeient te

* consider.

We suggest. therefore, that this @oust’s statement i

Beilan should be overruled and the general rule applies!

Surely the issue is an importa) one and ix of general interes:

in connection with the proceedings of lay boards.

*- e _ | ee

. 3. trconsidering the extent ta en person inthe sii

afion in which petitioner found hiisell bs entithed to th

sistance of counsel, it ix important to keep certain matters

in-ming. Pennsylvania's Loyalty, Mt required petitioner te

tile an oath with respert to his Lien current membershits ot

the Communist Party ©P. L. 1926 of Dec. 22. Mbe. Pets

tioner had filed such an oayh. denying wetbershiy ws or its

date. March 7. 1952 tFSa. 67a). Thus when. at the first

_ interview, petitioner wax asked) abou, maetaberstip pies poten

to that, namely, in January iM52 (vat. he quite naturally

was concerned, expecially as Dr Hoyer verted Deinis these Teer Tecaed

information that petitioner was a Communi=t as bate as May

1952 (G7as. It was natiral. therefore, that petitioner shel:

feel that his lovalty, was being inquired inte.

Petitioner then consulted counsel with reference to the

only question agked at the first interview and then fuswered

that question (Say. At the second interview te Hew ques

tious were-actually asked, but ‘petitioner requested that

general tenor of further questions be indicated xo that he . -

could consult counsel about them (Sa. BSae. and this wos

refused (a, Gay. Tt ix important to note that the Superin

tendent was accompanied, by the board's attorney re

The Court of Common Pleas on the dvexis of the foregeins

ruled that petitioner's second request to consult counsel was

reasonable—that indeed it could not “realistically” be sid

that petitioner had refused to answer at all (1400 f

In the Supreme Court the issue of coupsel was brushed

‘aside by the statement that petitioner was not on trial but

was merely being “questioned by his employer to determine °

his competency” (R. 26) ignoring the fact that at ne time

did the Superintendent in any way intimate to petitioner

that his competency, as distinguished from his loyalty, was

in jasue. :

petitioner quite properly would be concerned with the impli-

cations and consequences of answers which he might give.

It was Concern over these mytters which prompted his plea

of the privilege before the Hage Committee 20a, 21a, 25a).

That plea, of course, “war WW available to him before the

Superintendent.* He might well be troubled, however, over:

the extent to which answers he might give to questions could

he used-against hin in other proceedings and, since he was

not entitled to have counsel appear with him hefore the Su-

perintendent (37a), he at least wanted the right to consult

counsel outside the Superintendent's office.- ee :

’

Due process should require that a person faced + ith the

delicate situation in which petitioner found himself should

have the benefit of legal advice before he can be dismissed for

failure to answer questions that were wat even asked and in

the absence of any warning that such failure would be con-

sidered either evidence of ‘neompetency or ground for dis-

‘missal, : :

This Court has never had occasion to’ consider the precise

extent to which a person may be denied access to counsel of

his own choice 4n a situation other than a criminal trial.

That he is entitled to such protection in a.state criminal ease

is, of course, clear: Chandler v. Fretag, 348 U. 8.3 cited with

approval in Jn Re- Groban, 352 UL 8. 338003832; BR yivolds ¥

Cochran, 363 U. 8. 525. : .

* Even if sucha plea could have been interposed it would proba-

bly have resulted. in charges and disnissal oa, distuissal this Court

amight have sustained under Cohen v. Hurley, 366 U.S. 117.

. ;

; ae

° ~

‘Groban grew out of Ohio's statute Which authorized a fire -

marshall to conduct an investigation. This Court, bya Vote -

of 5 to 4, upheld the exclusion of counsel on the ground thea

the proceeding was an investigation, not a prosecution, and

that the witness could plead his privilege against self-inerime

ination. That xafeguard was, however, tot available to peti-

tioner when questioned by the Superintendent. The spirit

underlying the Groban decision would seem to call for a hold-

ing in the case at bay that the continued assistance of coun:

* <el was petitioner's right. It ix evident that the matier ix Of

great importance and will often arise. Jt ix an issue which

should be resolved by this Court. ae ;

4, 5. In Beilan three of the four dissenters (Justices

Black, Douglas and Brennan) in effect held that there wae

no basis for a finding either of incompetence or of disloyalty

by reason of the refusal to answer, The Chief Justice did noi

reach that point.-having dissented on a different ground (the

- one we have rafsed in paragraph 2 up). We vespectintls

submit that these are sound positi€ sa. should lead to a re-

consideration of Beilan. They are parciemarly appropriate

since jt is clear that both here and in Beilan the disinissals «

were actually motivated by the fact that the teachers had

pleaded their privilege before a Congressional Comygnitsec.

In both cases the refusal to answer had taken place many

months before any steps were taken looking to disxinissal,

nothing, indeed, was done until after the appearances before

- the Committee, amd charges were then immediately filed.

| CONCLUSION eam:

We respectf ully urge that the. writ be granted.

Respectfully submitted,

OsMonp K. FRAENKEL,

AL TArry LEVITAN,

Attorneys for Petitionc.

Appendix A

“ -

IN THE

SUPREME COURT OF PENNSYLVANIA |

CoS Easterns Disrkict:

No. 472

Bokap or Punic Eovcation,

ScHoot Distaict oF PULADELMHIA

! Appellant,

WILLIAM G. SOLER

P tt ascites

_ an Te rm, 1961

Appeal from the Seigue ut of the Court of Com-

mon Pleas No. tof the County of Philadelphia,

at No. 7939 December Term, 1954.

, .

_ Opinion of the Court

° 5 Cy P e +4 P :

Filed: December 29, 161

The facts in this case are not in dispute and micy be thos

‘summarized: On May 28. 1953, appelleesSoler, a teacher in,

Vhiladelphia Public Schools, was called to the office of Dr.

Hoyer, Snperintemdent of Schools, and was informed that 9

Dr. Hover had certain information in his possession wiriel

had an important bearing upon appellee's loyalty, and that

Dr. Hoyer would like to ask appellee somy qhiestions with

respect to’ this. Appellee then asked Dr Aloyér te give him.

a list ov statement of the i a8 quegfons since he de oe

‘

a ica

negative.

“ 2" 7 = _ 16

A ppendiz A

to consult: his attorney before deciding whether to answer

‘them. Dr. Hoyer thereupon gave him a siuple question to

take back to his attorney. That question was whether ajr

pellee had been an active Communist in January of 1952.

A second interview between Dr. Hoyer and appellee took

place af Dir. Hoyer’s office on June 19, 1953. At this inter-

view appellee answered in the negative the kample question

_ which had previously been submitted to him. Appellee fur

ther stated that before he would answer any similar ques-

tions he dexired the opportunity to be supplied with the ques: _

‘ tions, xo that he cotld again take them to his attorney for

- consultgtion. Dr. Hoyer refused to accede to his request,

at which point appellee refused to answer any further ques-

“tions dealing with his alleged disloyalty.

Because of this insubordinate conduct of appellee thé

Board of Public Education of the School Distriet of Phila-

delphia, after a hearing at which appellee was present and

represented by counsel, dismissed the appellee oa the grounds

of “incompetency.” The Superintendent of Public Lust fuc-

tion of. the Commonwealth of Pennsylvania affirmed the de-

‘cision of the Board. . Appellee appealed to the Court of Com

mon Pleas No. 1 of Philadelphia County which reversed the.

decision ‘and set aside the’ discharge (dismissal) of the

teacher, The Board thereupon ‘took thissappeal. -

The lower Court correctly nosed the issues when, it de-

eclared : “There dre basteally two legal, issues involved in this

case. The first is whether or Lot a swhool teacher can be dis: |

charged for incompeteney on the ground that he refused to

answer questions dealing’ with his loyalty, propounded to him,

by the Superintendent af Schools, The seeqnd issue, assum:

ing that the first should be answered in the affirmative, “is

whether or not appellant [here appellee} can be properly hgld

to, have refused to answer questions relating to his-loyalty

propounded to him by the Superintendent of Schools.” The ,

lower Court. then went on to anéwer- both issues in the

a }

—

- ga

* os y x

| Having -erected.a signpost and appreved a procedime fet the Hear

‘and destroy this signpost and procedure

| Appendic A - ~

Board of Public Education % Beilan, 386 Pa. #2, firmed

857-1 8. BOO. clearly and specifically held that refusab, by

a teacher to answer questions ax te the teacher's loyalty pre

pounded by his adiministratitive superior ix sufficient te rene

Jer the teacher “incompetent” within the meaning of the

tenure provisiongof the Public School Code of 19." The

Court said s :

“We tur to the conclusion of the court telow that the

charges against appellee Wid nei come within the grounds for

dixinixsal setforth in the School Code of 1949. xuyra, Vide

the Act of May 18, 1911. as ametfed by the Act of June 20.

1939, P. L. 482. the grounds for dismissal of a teacher were

‘juumorality, incompeteney. intemperance. cruelty, persistent

negligence, menial derangement, amd persistent and wilful

violation of the sckool laws of this Commonwealth... If

: ale appeDec had been charged with bemg a subversive it”

may be conceded that thes Loyalty Act foften called the

Pechan Act] should have deen: employed, but thix wax det

‘the charge. App flee was charg with incompeteney based

on hix refusal to respond to a pertinent inquiry ax to his tt

mean to be ateacher, The Loyalty Set preempted the field of

dismixsal for subversion ax therein, defined, ont cot her ccttises

of dismixsal remained unaffected, Section 1% of the Loyalty |

Act expressly provides: “The provisions of this act shall not |

affect the right to discharge any person for any cause other

thay, thoxe provided for Iw this aed or without, eatise inden

existing law...” Moreover the Lovalty Aet provides weither

the. procedure nor the substantive iw with respeet to the

duty of a teacher to answer proper lestions, The provisions

The writer of the present opimen wrote a Ai-segting opin

an Reilan Init his views, were rejected fy a amtorits Gf this Cont

4 1

to follow, this Court shotild be loath to now disapprove. dia

Appendix A

of the School Code do provide the basis for dismissal of a,

teacher who refuses to answer such questions.

“We have held that incompetency as a cause for dismissal

in to be given a broad meaning. In Horosko v. Mount Pleas: -

ant Township School District et al., 335 Pa. 369, 6 A. 24 86,

Mr. lustice LINN, speaking for the Court; at pp. 87£375

said: ‘The term “incompetency” has a “common and ap-

proved usage.” The context does not limit the meaning of

the word to lack of substantive knowledge of the subjects to

be taught. Common und appipved usage give a much wider

meaning. For example, in 31°@-J.. with reference to a num-

ber of supporting ‘decisions, it is detined: “A relative term

without technical meaning. It may be employed as meaning ~

-disqualification ; inability ; incapacity*-lack of ability, legal

_ qualifications, og fitness to discharge the required duty.” In»

Black’s Law Dictionary (3rd edition) page 945, and in Bou-

vier's Law Dictionary (3rd revision), p. 1528, it is defined

as “Lack of ability or fitness to discharge the required

duty.” ... eee

nent inquiry relative to his fitness to teach is not competent

within the broad reach of that term, whether the inquiry

concerns loyalty, or any other proper subject of inquiry.

Frankness and cooperation with an administrative superior

bear directly upon a-teachet’s competency. They are as es-

sential in one occupying a post of | public trust and civic

respo sibility as academic qualifications. Can it be seriously

' argued that where the superintendent of schools has trust-

worthy information. indicating that a teacher has an incur-

able communicable disease or that he is a peddler-of nar-

Scotics or, as hére, that he may entertain Communistic ideolo- . —

_gies which could be transmitted to the youth in his care, that

no inquiry ¢an be made.as to the fact and that the teacher is

‘not required to respond? As well stated in the brief of,

counsel for the appellant: f.. . The Superintendent has the

‘

gqeuch proper inquiry by secretiven’ss or concealment,

. fact that appellee not only refused to answer the qu

i) -

Appendir A :

power and the duty, waenever the facts indicate the need, to

inquire into and reevaluate the fitness of a teacher” Un

_questionably there is a reciprocal: duty on the part of the

teacher to fully and frankly cooperate. Te may not block

“In Adler «f ‘al. vy. Board of Education of the City of New

‘York, 342.U, S. 485, the majority opinion of the U.S. Sue

preme Court hy Mr. Justice Mixvox, upholding the consti-

tutionality of the Feinberg Law which prohibits employment

of members of subversive organizations in the public schoots

of. the State of New York, stated ai p. $9320... A teachpr

works in a sensitive area/in a schoolroom. There he shat prors

the. attitude of young minds towards. the society in

which, they live. In this, the state has a Vital concern. tt

must preserve the integrity of the schools. That the. school

- authorities have the right and the duty to sereen the officials,

teachers, and employees as to their fitness to maintain the

integrity of the schools, as a part of ordered society, cantot

be doubted.’

“In the instant case the court characterized appellee's

conduct as “misguided secretiveness and lack of candor’,

which it said it did not condone. The secretiveness consisted

of a.deliberate and insubordinate refusal to answer the ques:

tions of his administrative superior in a Vitally important

matter pertaining to his fitness. Such conduct stampee him

with incompetence as a professional employe in the. public

schools. an

“The court below states that ‘the Superintendent's query

related tu a political ussocsation alleged to have occurred

eight years privt to the interview and that appellee’s refusal,

to answer ‘that question” was obviously not relevant to the

issue of his present competency, The. vourt overlooks the

letion put

to him, but any similar questions. . . .

« — Past conduct may well relate to presen! fitiiess:

past loyalty may: have a reasonable relationship to present

Appendix A>,

and future trust. Both are commonly inquired into in deier-

mining fitness (or both, high. and low positions in private

industry and are not less relevant in public einployment.”

Bae muck of the argument of counsel for appellee: pxo-

coeds upon the unwarranted assumption that appellee _

charged with subversion. . oa appellee had been charged

with subversion, his reliance upon the Fifth Amendment at,

the Congressional hearing would not have established his

disloyalty. But the charge here was, got disloyalty but in-

competency, based’ on his refysal to respond to ihquiry per-

taining to his fitness... — ie

“, |. The Superintendent had the power, if not indeed

the duty, to make the inquiry, and appellée had the duty to

cooperate by answering freely and frankly. His defiant con-—

duct in refusing to respond justified his dismissal oi the

ground of incompetency.” ‘ :

The lower Court held that. the later opinions of this

* Court in Board of Public Education v. Intille, 401 Pa. 1, and

Board of Pubtic Education V. Watson, 101 Pa. 62. overruled

Beilan. This was error. Beilan involved questions pro-

pounded by the teacher's: administrative superior, while in

Intille and Watson the questions concerning the teachers

loyalty. and>his Communistie activities—which in each case

the teacher refused to answer—were propounded by a Con-

vressional investigating committee. That distinction —be-

tween, Beilan and the Jntille and Watson cases clearly ap-

peared throughout the Court's opinion. In-the Jufille case.

_the Court pertinently said : tee

“The three appellants (Angeline Intille, Thomas Deacon

‘and Sadie T. Atkinson) were teachers in,the public schools

of Philadeiphia until the Spring of 1954. when they were dis-

missed by the Board of Public Education of the School Dis:

trict on a charge of ‘incompetency’, preferred by Dr. Louis VP.

Hoyer, Superintendent of the Philadelphia public schools. In

each case, the dismissal was based solely on the teacher's

4 | "i

Appendiar A a Raa

refusal to alswer certain questions propounded by a. Sub-

committee’ dafso Known as the Velde Cofmmitter so: the

UnmAmerican Activities Commitice of the House of Repre

sentatives concerning the witness’ alleged membership in and

association with the Communist Party. .

“ ~The Superintendent based his finding of ieome-

petency solely upon the fact that the appellanis had reiused

to answer questions asked tiem by the Congressional Com

mittee in reliance of their pleas of privilege Windermtie Gitta

Amendment’ against self-incerimination.

~ .. At no time did any, of the appellants: reise to

answer ahy question asked them by their administrative

superior: .. . atin ae

“The three co-ordmate courts below each sustained, the

order of distissal before it in the mistaken belies ibaa the

question involved was ruled adversely to the appellants eon-

tention by this court's decision in. Board of Public Education

Schoot District of Philadelphia v. Beilan, 586 Pa. 2. 12% .A.

Yd B27, aff'd 357 U.S. 399. The error in that conclusion is

patent. What the Board of Education sought to accomplish

in these cases goes far beyond anything that was either

decided or implied by the opinion for this court in Beilaws

case. His adjudged incompetency resided exclusively cit tae

fact that he had refused to answer questions of his adminis:

trative siperior { Superintendent Hoyer) concerning ME Lers

deemed to have bearing on his qualifications as a teachef in

the public schools of Phijadelphia, and not that he had re:

fused to answer questions of a Congressional Comittee.

That such was the ratio decidendt in the Beilan case is nil

open to question... cant ‘ %

“The appellee Board is well aware of the distinetion yea.

tween Beilan and the present cases. In the Board's brief on

these appeals. it is stated that ‘The present cases differ from

the Beilan case in that the teacher's refusal to answer ques

* Italics ours.

. >)

: Appendiz A

tions occurred before a Congressional Committee rather than

before his administrative superior: . . .”

Justice Cohen in his concurring opinion in ithe Tatille

case clearly set out the sole issue before the Court in that

case: *. . 2the only legal problem with which we are con-

cerned and the. only ‘question briefed and orally argued on

these appeals is whether a public selivol teacher is ‘incompe-

tent’ if the sole evidence of his alleged incompetency is that

he availed himself of the privileges of the Federal Constitu-—

tion in a Federal proceeding.. This has been answered most

adequately by the opinion for the Court.” * These cases, we

repeat, hold that the refusal of a teacher to answer such

questions before a ¢ ‘ongressional Committee on the grounds

of the First or Fifth Amendments to the Federal Constitu-

tion does not of itself render the teacher “incompetent”.

However, it is still the law of Pennsylvania that the -vefusal

by a teacher to. answer relevant {juestions concerning his

‘loyalty prepounded by his administrative superior is ground

for a finding of incompetency. under the tenure provisions of

the Public School Code. .

Appellee contends that since the questions dealt with, his

loyalty, the procedures provided for dismissal under the

Pechan Act** are mandatory-and exclusive. - We repeat, ap-

pellee was not dismissed on the ground of aati he was

dismised on the ground of incompetency weause Of insub-

ordination and lack of frankness, candor and. intellectual

honesty. ‘The fallacy of appellee's position is that he believes

" and contends that any question pertaining to or within the

area of Communism or subversive activities or loyalty to our

ieacraiee A a Sh ee

.* Thus any language in the /ntille and Watson cases which fails

to distinguis between the situation where the questions are pro-

pounded by an alninistrative superior and those situations where

the questions are propounded by a Congressional Committee was

dicta. To avoid any further confusion we disavow such dicta and

lint the opinton in those cases to the questions which were there

involved. .

#* 65 PS. § 211 et seq.

ae A ppendian A ;

Country is barred unless bronght and propounded under the

Pechan Act. That gives to the word “Preampetent boo tae

row and restricted a meaning, and to the Pechan AXet toe

broad a meaning, and is specifically refuted hy the (Court's

opinion in Board of Educ ation V. Beilan, supra. =

- Mr. Justice Frankfurter’s concurring opinion ca Beilaw \.

Board of Public Education, 397 U.S. 399. further refutes

appellee's contention when it declares at page 1h The

cservices Of two public employees have been terminated be:

cause of their refusals to answer questions relevant. or met

obviously irrelevant, to an inquiry by their Supervisors info

their depe ndability. When these Wo employees were de &

charged, they -were hot labeled ‘disloyal They were dis-

charged because governmental authorities, like other employ

ers, sought to satisfy themselves of the dependability of em

ployees in relation to their duties. Accordingly, they made .

inquiries that. it is not contradicted, could in and of them

selves be made. These inquiries were balked. The services

of the empluvees were therefore herminated, ‘Ss

“Because the specific questions put to these cnplovees

. vere part of a.general inquiry relating to what is compendL

ously called subversion and to conduct that on due proof tay

amount to disloyalty, every part of the process of inept is

given the attribute of an inquiry into disloyalty amd every

resulting severance from service is deemed a finding of lis:

loyalty. The argument runs, in essence, that because such an

inquiry may in certain iastanees lead to a determination of

disloyalty, the refusal to answer any questions in this process

and dismissal therefor themselves establish disloyalty. To

make such an attribution to a State, to draw such an infer

ence from gy carefully limited exercise of state power, te dis:

alow state action -lecsatise there are those who may draw

iNerences that the State itself has net drawn and has

avoited drawing. is a curbing of the Stites through tha Four:

teenth Winerdment that makes of that Amendinen, ii ist re

ment of general censorship by this Court of state aetion.”

__ Any teather who refuses-te-answerethe ‘Superis

Appendia A

a Btn ;

Furthermore, appellee’s argument is clearly unrealistic.

cerning questions pertaining to whether he was a sex pervert,”

ora purveyor of narcotics, or has commiitted a robbery, arson.

rape, or murder, could and should be‘dismissed as a teacher. |

Rut Communism is far worse. The shove jmentioned crimes

clearly and obviously relate to a teacher’s fitness and coni-

petency, yet the COMMISSION of any one-of those erinies would

injure only one or a very few persons. On the other hand,

Communism makes a teacher Gar more untii and incompetent

than any of the above mehtioned crimes because it: would

destroy and enslave not one or a few persons, but over one

hundred and fifty million Americans. Communism by its

teachings and even more strikingly by its acts and deeds ix

the mortal enemy of our Country. Commutiism is not merely

a ‘political belief like the peaceful advocacy of somialisin, or

democracy, or republicanism, or any share-the-wealth plan.

or the abolition of Congress and the substitution of an oll-

garchy or of a dictatorship. Communism is a world wide

~pevolttionary_ movement to overthrow by force, violence, sub

version, sabotage, strikes, insurrections, ~revolition and.

whenever necessary, war, the Government of every other na-

tion and to establish an atheistic Communist. dictatorship

therein. Obviously, a teacher who refuses to answer his

Superintendent’s questions pertaining to his present and

past Communistic membership. activities Or associations, is

unfit and incompetent to bea teacher of our youth.

On the second ixsue involved, the court below held that

even if the Beilan case is good law, Soler did answer the

“sample question and did not, refuse to answer similar ques-

tions. What he did was. as above stated, to ask that before

he was required to answer sitpilar questions he be permit-

ted the opportunity of consulting counsel, That request —

itendent cou, 0

Appendir A

Was petemnd. med Noley thew refuse do te ansiwes turthe 1 ques

tions selating be his lowalty. :

Sater aa yor on trial for a criminal offe tise oot a Veehan

Act offense nor was he bet are sugges ional jbestigating

committer, He was here Leing questioned by Jos adinities

trative superion in-private. Te has ne rigghn to be repre

~ rifend bey copnsel or te deimieid a bist of questions te i

asked. whew questioned hy new emplones fon determine bes

com pole ney. To vomtened asst a teacher eat isis? thet at

professional interview with bis supeties chal Ne cenlacted

ouly on Ue teachers fevias is iepeasccabele ated igtnetes ite

cfiec tually wegdtes: ‘the relationship.bet Ween beac heere satu sui

perior. Soler. nefusal Ww aiaver bis aebnininsint coat ive <i

perion Was in just ified! samed is geremned few ae finedinge of tee ott

petenes. .

Judgment reversed and the decision of the Superceteted

emt of Pablie Tnstrietion is reiistated,

Mr. Justice Jones concurs in the result,

Mr. Justices Cohen files a dissenting opinion.

Dissenting Opinion

Cohen, J.

ij dissent from the opinion of the majority because it ix

contrary to the law of this Commonwealth.

This matter is the third ina series of so-called “Com-

munist-Teacher” cases which this court) has been called

upon to decide in the last five vears. In Board of Pubhe

Education School District of Philadelphia v. Beilan, 386

Pa. 82, 125 A. 2d 327 (1956), we held that the refusal of a”

school teacher to answer the questions of his administrative

superior concerning alleged Communist activities estalr

lishes the. teacher's professional incompetency within the

meaning of the Public School Code of 1919, Act of March

10,1949. P. L. 30, 24 PLS. £ 11-1122. This decision was

-. affirmed by the United States Supreme Courts at 357 U7. 8.

399, 409, 2 L. Ed. 2d 1404. 1433, 78 8. Ct. 1317, 1324 (1958)

on the ground that the interpretation given. by this cour

to “incompetency” was Ret inconsistent with the Due Proe-

exs Clause of the Fourteenth Amendment. This case was

effectively overruled, however, by our recent decisions in

Board -of Public. Education Vv. [ntilla, 401 Pa. 1. 163 A. 2d

420 (1960). and Board of Public Education Vv. Watson, 401

Pa, G2. 168 A. 94 60 +1960). In Intille, we said that the

‘refusal of a public school teacher to answer questions in

a hearing’ before a Congressional committee, in reliance

upon the privilege against self incrimination guaranteed by.

the fifth amendment did nof -constitute incompetency or

evidence of iIncompeteney within the meaning of the Put

jie, School Code, and such exercise of a cousttitutional privi-

lege ix not cause for dismissing a teacher. Similarly, in

Watson, we held that the refusal to answer «plestions before |

a Congressional committee under the first amendment of the

federal constitution did not constitute incompeteney or evi-

‘dence of incompeteney within the Code. and tliat the «dis-

mixsal of the school teacher was improper.

Dissenting Opinion *

The [ntille and Watson opinions were both written by for

mer Chief Justice Charles Alvin’ Jones who had previously

dissented in Beilan. An Tatille, the court per former Chief

Justice Jones stated at 21-25% 4 '

“For a public school teacher to plead a cot atl

‘privilege..in appropriate circumstances: does Hot prove

teacher's incompeteticy within the intended scope of

that term as used in our Public School Code. The jlea

ix not even relevant as es idence of incompeteney. Vist

as remaining inute, pei a plea of the Fifth Amend:

nent. carries no implication of guilt of the matter im

quired about in the unanswered questions (sce Slouch

ower. Board of Highes Education of New Pork City.

359 US. 51, 100 L. Bd. 692, 76S. Ci. O3T SGD se

also dees the plea not carry an implication ol ihe

- pleader's incom poleney. Nor is it of any peateriality

toa ‘question of the pleaders competeney whether or.

not the propriety of Tie plea against self-imerimiinas ion

i< conceded or rejected by the inquiring body se long

as the plea is made in wool faith and ix net plaints

frivolous. —*

« Uf-the vefuxal to answer a particular question ix

to be made a haxix tor the discharde of ae prot xsiondl

employer, the que stion should, obriously, have for its

purpose the eliciting of information Seoncernming some

matter material to the fitness of the employee ta con

tinne at work, This ix xo whether the question pn

pounded be by a Congressional committee oro by th

Board of Education itxel), And, tf the only material

matter to which the que stion relates is possible dislow-

aliy or subee rxueit ow the purt of the employer, Ue

any proceeding looking to his dixmisxxal jor vopisal to

ansicer Questions 1 lating to hix possibly disloyal on

"¢ xabrersive activities o affiliations must In brought

under the Pennsyleania Loyalty Act of Dees mer 22,

1951, PL. 17.26, 65 2. S. § 211 et ne qe | Pechin Act}.

Diascnting Opinion

_., What the Boafd of Education attempted to do in |

these cases is to avoid the requirement of the Pennsyl-

vania Loyalty Act that disloyalty or subversion, gs

ground for the diseliarge of a public school teacher,

must be proven’ ‘by a fair preponderance of the evi-

dence.” The Board's action evidences a belief that it

has found a way to dismiss, without any evidence at all.

teachers whom it suspects of disloyalty or subversion.

Anything in the Beilan case to the contraty.is herewith

orerruled for the future In searching out and elimt-

nating disloyalty or “subversion among teachers in

public schools the procedures of the applicable statute

* enacted for that purpose must be faithfully pursucd,

and riglence must no longer be done the meaning 0)

the word ‘incompetency” it order to cireumrent the

procedures of the Loyalty Act.”

Similariy, in Watson, the former Chief Justice said at jp. 10:

- “[A] teacher's refusal to answer questions touching

her loyalty does not constitute ‘incompetency, within

the meaning of that term as used in the Public, School

* Code of 1949 and that any proceeding looking t the

dismissal of a teacher, with tenure for alleged disloy-

alty must be brought and proceeded with under the

provisions of the Pennsylvania Loyalty Act of Decem—

ber 22, 1951, P. L. 1726 (65 P. 8. § 281 ef xeq-)-

; Consequently, leas than two years Ago, this court specitt

cally held that, Beilan. notwithstanding, incompetency under

the Public School Code does not include the refusal to answer

- questions concerning loyalty to either a legislative investi-

gating committee or the administrative superior. If the

Board of Education is concerned with the: question of an

employee's loyalty, let it nivoke the proper administrative

“procedure provided by the Pechin Act, with its requirement

that the appointing authority must establish by a fair pre:

- ; pe ” 4 ‘

Z Dissenting Opinion :

” a

pomlehanee of ke os thence that the aceinsed ix subversive. Jn

decid Section 13 of Que Act of Marels 21. 1806, D. L. 398, 1 Sm.

L. 326. $15. 16 PS. Ly pros ies thai i all cases Where

a remesly is provides « duty enjoined, oF ans theug ive ist

te be done by any afet or ets of assembly: of this Connie

wealth, the dizections of the caiel gactes sland foe strict hy go

cued, and no penalty shal] beNgitlieted or siti biti erties

_agrevably to the provisions of sie eOMunEn law. in stich cases.

further than slo LL be necessars fer core Nye siieh act er acts

. inte efteet.” This court hax reiterated this p wa Niegts cote tancetes

OCCASIONS 2 SOC, f 4. Jacobs \. Feiss. Bsa. i. 2 ee Nad

356 (19559. College rille Bovough \. Philadelphia Soa ow

Water Compang, 377 Pa. 636, O15, 105 4. 24 722 (WE).

Here again, the Beard of Education contends that the

hearings were concerned, aptly ® ith ineompetene’ . net i-ley

alty. The facts, however, convincingly refute this assertion.

At trial the, superintendent of the public schol <ystetm juni *

fied that the purpose of hix interview with Soler was to ask

“him questions concerning certain information whieh bad a

bearing on appellee's loyalty. Indeed. the camnple «question

given to Soler was whether he back been an act fe Commnnist”

An 1952. In this regard, Justice (now Chiel Justices Bells

dissenting opinion in Réilan is relevant. He stated: “We

cannot shut our eyes to the inescapable fact which we are

vonvinced!_—-notwithstanding the carttest. able, argument of

counsel for the Board-—ix glaringly disclosed by thix | Ee

that Beilan was fired because the ‘Board belagverd he Was os

This coyrt altered in Intille and W atxgn the interpreta

tion of “incompetency” which ‘it had previously given it

Beilas. Vt is unfortunate that in lexs than two year Wer eet?

fit to reinterpret it in a case where the facts are quite sin (hir

to these in the overruled Beilan case. and thereby eatine cot

fusion where clarity once reigned. ; |

o)-

xe Digsénting Opiiion

- In our fight against Communism, we must not fall inte

the practice of resorting to the very methods - our enemies.

Our decisions must be governed not by the te nper of times

byt by a rigid adherence to. our federal and state constitution

dud, to statutory enactments. As this court stated in Schles-

~ inger Petition, 367 Pa. 476, 483, 81 A. 24 316 (1951), “Ht

need hardly be stated that this Court is as opposed to com:

munjsm in all its manifestations as the respondent Judge

who instituted these contempt proceedings. _But it is our

sacred duty to uphold -the Constitutions and laws of our

“Country and State and their provisions as to-due process of

w, What the Judge has done; in his zeal against commu

sm. is to adopt 4he detestable method employed by com-

unists themselves in arbitrary and anjudicial proceedings

contrary to all our cherished traditions of law and legal

procedure.” ne .

When we shut our eyes to the inescapable fact that Soler

was discharged for failure to answer questions at a loyalty

proceeding and not at an incompetency hearing, we do vio-

lence to the very institutions we seek to protect.

wv °

DECISION -AND ORDER

Judgment reversed andthe decision of the Superintendent

of Public Instruction ix reinsiated..

os : ae Bev, C. J.

Mr. Justice Jones concurs in the result. -"

Mr. Justice Cohen files a dissenting opinion.

December 29,, 1961. oT

4 , -—

—

~=~_

” a 7)

Appendix B .

Constitutional, and Statutery Provisions Involved

Fourtecuth Ame ndment— Due Process Clause.

erty, or property, without due process of law: coos T.

Const. Amdt. 14.

Pennsylvania Education Law 5

Causes for Termination of Contract

The only valid catses for termifiation of a contre’ here

tofore or hereafter entered into with # ‘professional em

plove ” shall be immordity., incomperenes. jnteniperaner.

cruelty, persistent negligence, mental derangements, persist y 4

ent and wilful violation of the «chook laws of this Coming

wealth on the part of the professional employe: Previdesi.

That boards of school directors may terminate the service

of any professional employe whe Haas at taninend the age of,

sixty-two. Al

Nothing within the foregoing vrumeration of catises.

shall be interpreted to conflict with the retirement of profes:

sional employes pen proper evidence of disability, oF the

election by professional employes to retire during the perio.

of voluntary retirement, oF the authority of the levtik of

school directors to aqaguise professions employes te retire

during said period of voluntary retirement. oF the comput

sion on the part .of professional employes to retire at the

attainment of age setenty. 1949, March 10, Y. i. 3 art.

XI. g 1122. 149, May y PL. 950. $4. 24 Purden's Pa.

Stgts.Aun. § 11-1122.

Investigations

Any appointing authority may at any time. ipene Wei Ten,

complaint. investigate any persen. irvelanedinnge tected ts sated

_Appendia B

other employes of the public school system, appointed or

employed by him, to determine whether he is a subversive

person. If, upon any investigation, it appears that. such

person is a subversive person, the person shall iminediately

be privately and confidentially notified of the recommenda’ F

tion by the appointing authority. No public announcement,.

release, statement or comment concerning the investigation,

recommendation of notification shall be made by the appoint-

ing authority im any Way whatsvever, unless and until the

person so notified is discharged under section seven of this

act. 1951. Dee. 22, P. L..1726 < §. 6d Purdon’s Pa. Stats.

Anm § 216. : ‘

Hearing Before Appointing Authority

Any person, including teachers and other employes of

the public. schoo. system, who has been so notified undér

this act, shall have a right to a hearing before the proper

appointing authority within thirty (30) days after receiv:

ing said notification. — If no hearing is requested within

thirty 430) days after said notification is received, the per

son shall immediately be discharged by the appointing ae

therity.. He may appear before such appointing ‘authority

personally, accompanied by co inse] or representative of his

own choosing. and present evidence con his own behalf

through witnesses. The person who has been so notified shall’

at the same time be further informed in writing of such hear-

ing. at least ten days before the day set for the hearing:

and shall be informed therein of the nature of the charges.

agains. him: and the person who has been so notified shall

he informed inthe notice (1) of his right t*reply to neh

charges Ing whiting within ten days after the date of mesic.)

2) of his right toa hearing on such charges before the a eg

poimling authority, which hearing may he private and con

dential or may be public. at the option of theperson so notl

yi ae

“i 2 2 oi

| “ " et Ya

° Shep

Appendir B e

\ ’ .

tied, and (3) of his right to apear before such ap presided tage

ant hority personatly. to be accompa ive by counsel er repe

resentative of his awn choosing, amd te present evide nee on

his own behalf through withesses: Jif. after due hearing. i

is determined by the appointing authority by oa fai pre

ponderance of the evidence that the person whe hos beet so

_ notified isa suliversive person, as defined in this act. the per

sone Who has Ween so notitied shall be diseh: arged: otherwise,

the recomme mdation shall be ienored.. Said deterbiitaition

chalk be made within sixty (60) days after the hearing.

the appoimting Authority shall be comprised of three op mere

mepibers. a vote of two-thirds of the members whist} Tee thes

essary in order to dise harge a person. Mol, Dec. 22. P.-L.

1726. $7. 6d Purdon’s Pa. Stats. Ann. § 217. 2

Appeal to Court of Common Pleas

When appeal is taken frien the decision of the Superitr :

tendent of Public Education to the Court of Commer Pleas

‘** * the judge of the court-* ** shall fix a date for hearing

by the court #eo:*: If the professional eniploye ager even!

shall so request in his pe tition, sucle hearing shall be de nove

# % * 1949, March 10. Po DL. 30. ait. Ni. $ Ligzeby. 24 Innit

don’s Pa. Stats. Ann. < j1- Lisgeibas

Appendix C

Extracts from Appeal to Court of Common Pleas

42. The Adjudication is erroneous in holding that a'pro-

fessional employee of a school district may be distnissed upon

a charge which alleges “violation of the School Laws”, with-

out setting forth any provision of the School Laws or any

regulation thereto alleged to have been violated. Such hold-

‘ing is contravention of the school Code, 6f the Due Process

provision of Article 1, Section 9, of the Constitution of the des

Commonwealth of Pennsylvania and the Due Process provi

sion of, the Fourteenth -Amendment of .the Constitution of

the United States. |

13. The Adjudication is erroneous ‘in its holding that

there is evidence in this record of incompeteney oi The part

of appellant. ;

“14. The Adjudication is erroneous in its holding that

without any specifie and clearly defined authority in the

Statutes of the Conmonwea'th ‘ov Valid regulations issued

pursuant thereto, a professional employee of a school district

may be dismissed for refusal. to answe: questions of the

Superintendent of Schools in relation to his associations or

‘beliefs, past or present Such holding violates the School .

Code. of the Commonwealth, the Due Process provision of

Article 1, Section 9, of the Commonwealth, it violates the -

previsions of Article 1. Section 4, of the Constitution of the

Commonwealth, and violates the Due Process provision of

the Fourteenth Amendment to the Constitution of the United

States. |

15. The Adjudication is erroneous in its holding that.

having received a categorical denial by appellant, that uppel-

lant had been a member of the Communist Party in January

1952, the Superintendent of Schools was justified or author

Appendir i :

ized in entering upon further questioning while denying toe

the appellant the right to have counsel advise him sto vie

propriety and legality of the questioning.

1b. “The Adjudication is erroneous in holding that the

requirements of the Public School Code requiring a full lear

ing were compiled with by the hearing granted fim as set

forth in the official record thereof.

17. The Adjudication ix erroneous i that it deprives

appellant of property rights, accunmlated through mats

years of seryice, in accordance with the contract ex’ de!

tween the parties, consisting inter alia of retirement benetits

and collateral henetits. in proceedings in Which moj ett. oil

tilla of evidence Was addiiced in derogation oF diminution of

appellant's concededly unblemished pedagogical, ferson i

and ejvie record. The procedure adopted deprives appellan

of the protections of Section Liv2 and, 1125 of the Seliog!

Code of 1949, as amended, and of the rights wus antecd hin

by Article I. Section 9, of the Constitution oi this Commion

‘wealth, and of the Die Process provision of the Fourteenth

Amendment to the ( ‘oustitution of the United Stites.

18. The Adjudication ix erroneous in that it affirtms as 4

requirement of continued enjoyment by appellant of stat

tory and contractual rights of employment an Unqnest ions

submission to interrogation as to paisL polities! or religion

beliefs (not alleged then to have been wnlaw fuls, conducted

apart from, and not purporting fo becin purstiaiies of. ats

provisions of the School Code or of the Pennssivania Ley

alty Act, but in determined and obvious exasion theres.

y ‘

Appendix D

Excerpt From Petition for Rehearing

Before Supreme Court of Pennsylvania

ILI. The dismissal of appellee was in Violation of the

Due Process Clause of the Fourteenth Amendment to the

Federal Constitution in that the record does not show that

he was dismissed solely for failure to answer the Super-

intendent’s questions.

* - e * &

IV. The dismissal of appellee was in violation of the Due

Process Clause of the Fourteenth Amendment to the Fedéral!

Constitution in that appellee did not receive reasonable -

notice that his failure to answer would be considered evi:

dence of scp senna A under thé Teachers’ Tenure Act of |

1949.

eo * *

V. “The dismissal of appellee is in vislation of the Due.

Process Clause of the Fourteenth Amendment to the Federal

Constitution since he was deprived of the right to counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.