Opposition brief to Petition for Writ of Certiorari — Watts v. Seward School Board

LIBRARY. a thr Seprne. tort us |

7 ILE

SUPREME COURT, U. 5S. =

| : IAN 12 i970

RK

IN THE

Gan Court of the Huited —

October Term, 1969 + |

JAMES A. WATTS and WALTER B. BLUE, Petitioners

v

SEWARD SCHOOL BOARD AND BOA OF EDUCATION

APPEAL HEARING COMMITTEE, Respondents

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALASKA

“ Theodore M. PedSe, Jr. .

BURR, PEASE & KURTZ, INC.

825 West Eighth Avenue

Anchorage, Alaska

; INDEX

‘ ; Page

The Decision of the Alaska Supreme Court Rests. on an

Adequate, Non-FederalGround .........6..00< cess 2

The Questions Raised in the Petition Are Not of

Sufficient vonnnone Stature to Justify Granting

oF vacinns cing RL EE ETE CE RHE oe re ne 4

The Decision of the Alaska Supreme Court is in Accord

With the Decision of This tn Ree ere ame Men sneynbe 6

COME | os ot tee eae es mig kiearey eae ee |

a

INDEX OF CITATIONS

Cases:

District of Columbia v. Sweeney, 301 U.S. 631 (1940) . 5

Layne & Bowler Corp..v. Western Well Works, Inc., 261

7 ee AEE UNS ea Gk SKN ee 5

Meehan v. Macy, 392 F.2d 822 (1968) Te Pe re oe

Michel v. State of Louisiana, 350.U.S. 91, 97 (1955) . 3

Milk Wagon Drivers. Union v. Meadowmoor ‘Dairies, Inc.,

312 U.S. 287, 94 (1940) Seeker ee 7

Pickering v. Board of Education, 391 U.S. 563,68 (1968) 2-8

Pollastrine v. Severance, 375 P.2d 528,31 (Alaska 1962) . 3

Puentes v. Board of Education, NY.

CRO | OW ova eee iy ew Rk Cee ee 4

Rice v. Sioux City Memorial: Park Cemetery, 349 U.S.

eRe CERNE ure Maire aN Gautier y 5,6

Sanuita v. Common Laborer’s Union, 402 P.2d 199,201

LIA TEMOOE. x careh rie erene a are 3

Watts v. Seward School Board: 454 P.2d 732, 37 (Alaska

ROOD fos REE ee ee eh ee weuveseee

Williams v. Georgia, 349 U.S. 375 (NE) 4 5 Vc eas So 3

STATUTES

Ae ee ee Ae RES ee 5

AE ES AA os ke ON eee ek Ore 5

: REGULATIONS

Seward School Board Regulation E(7) .............. ES

Sia ciasides pscascks Stciansianiaetase es

coca y f MEE BEAM OS cme reg ¢ RPS

Js

IE SPUR PERE IR PT ES TET

Ss ik cal Os SE eR et eee eonaret

a

‘IN THE

(Supreme Court of the Huited States

| October Term, 1969

No. 573

JAMES A. WATTS and WALTER B. BLUE, Petitioners

ara

SEWARD SCHOOL BOARD AND BOARD OF EDUCATION

APPEAL HEARING COMMITTEE, Respondents

---——-1

BRIEF IN OPPOSITION TO”

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALASKA

/ : - ‘ }

f 2 E ‘ ry

‘THE DECISION OF oe ALASKA SUPREME

COURT RESTS ON AN ADEQUATE, NON-FEDERAL.

. OUND.

In passing upon this case after the second remand from

the Supreme Court of the United States, 391 U.S. 592

(1968), the Supreme Court of Alaska: reaffirmed: its prior

determination that. Petitioners Watts and Blue violated

Regulation E-7 of the Seward School Board, and that this

was a sufficient, independent ground for their nonretention. __.

Watts v. Seward School Board, ‘454° P.2d ce 37 (Alaska

1969); Regulation E-7 Provided: ie

Grievances, complaints and communications from

employees shall be submitted to the Board through the

Superintendent. Any employee or group of employees

may at any timé appeal to.the Board. -

It is uncontested that: Petitioners - Simultaneously delivered

copies of their “Open Letter to.the Seward School Board” fo

the Superintendent, m¢ bers of the School Board, and: the.

public, in substantial lation of. Regulation E-7. App. 7-75,

186, 198-99. ! ; ;

Petitioners have attempted to attack this finding in several

ways. First, they have alleged that Regulatidn--E-7 was not

properly adopted, and therefore its -violation may not serve as

a ground. for nonretention. The State Board of Education

Appeals Hearing Committee and the Alaska Supreme Court,

however, found that there was sufficient. evidence to infer

that the Regulation had properly been adopted by the Seward

School Board, that at the relevant time it was a valid

regulation within the school system, apd that Petitioners had

contractually agreed to abide by that regulation. App. 24-25,

73-74. The Alaska Supreme Coyprt reaffirmed _ this

determination after a thorough and ind pendent review of the

evidenee. 454 P.2d 732,37.’ In addition, Regulation E-7 was

;

“App.” refers to the joint icc filed by the parties i in No. 325,

October Term, 1967. Petitioner has filed a,motion to use that record in

this case, and Respondent hereby joins in that motion.

=

3

contained in a handbook of regulations’which was distributed

to all the teachers in the ‘Seward School system, and

Petitioners were personally familiar with Regulation E-7. App.

178 (Blue), 208 (Watts); 74.

Second, Petitioners have attempted to raise constitutional

objections to Regulation E-7. They now argue that it is both

vague and overbroad, and on those bases constitutionally

defective. This argument was originally advanced, however, in

a petition for rehearing after the Supreme Court of Alaska

had rendered its second decision in this matter. App. 119-122.

At that time the Supreme Court of Alaska held that it would

not consider new arguments raised in a petition for rehearing,

which had not been briefed and argued in‘ accordance with

that Court’s rules. App. 122-25. This holding was reaffirmed

by the Alaska Supreme Court after the second remand from

this court. 454 P.2d 732,37. It is well established law in this

Court that reasonable. restrictions on the methods of raising

constitutional arguments are valid, and the failure to comply

with those restrictions will bar a party from resorting to those.

arguments. E. G. Williams uv. Georgia, 349 U.S. 875 (1955):

Michel v. State of Louisiana, 350 U.S. 91, 97 (1955). In this

case the Supreme Court’ of Alaska has adopted a: procedural

rule reqiring a party to raise all of its points on appeal in the

first argument of the case, rather than holding some in reserve

to be used in a_ potential petition for rehearing. This —

requirement has been uniformly applied in other. cases.

.

Sanuita v. Common Laborer’s Union, 402 P.2d 199, 201 ~

(Alaska 1965); Pollastrine vu. Severance, 375 P.2d 528, 31

(Alaska 1962). Since this type of requirement obviously

promotes the just and expeditious disposition of causes, it is

submitted that this procedural _ requirement of the Alaska:

Supreme Court is a valid restriction upon Petitioner’s right to

advance arguments concerning any potential constitutional

infirmities in Regulation E-7. - i

In their brief filed with the Alaska Supreme Court after

the second remand from this Court, Petitioners attempted to

argue that the decision making process, through which

Petitioners were dismissed was unconstitutional. In their one

paragraph argument, however, they cited no cases other than

those cited by this Court in the Pickering case, 391 U.S. 563,

68, N. 2 (1968). The Alaska Supreme Court, in its

] 3 ot

.

eo

4

consideration sili remand, refused to consider this argument

on the same ground that it had refused to consider previous

arguments concerning the constitutionality of Regulation E-7;

i.e.s that il was not timely presented. Watts v. Seward School

Board, 454 P.2d 732,37.

II.

- THE QUESTIONS RAISED IN THE

PETITION ARE NOT OF SUFFICIENT

} CONSTITUTIONAL STATURE TO

| JUSTIFY GR'ANTING CERTIORARI

A. This court should allow future decisions to clarify the

various .considerations involved before laying down

further guidelines for the decision of cases requiring a‘

court to balance the interest of employees in

exercising their right to freedom of speech, and the

State, as the employer, jn assuring an efficient civil

service.

In Pickering vs. Board of Education, 391 U.S. 563

(1968), this Court clearly recognized the myriad factual

situations which might arise in ‘attempting to define the rights

of public employees in the exercise of their rights under the

First, Amendment. Jd. at 568-69. Thus, this Court specifically

refrained from laying down.a firm rule under which all cases

in this area must be decided, but rather held that each case

must be adjudicated on its own merits, arid the interests of

~ the employee and the State -balanced in, each instance.

The problem in any case is to arrive att a 1 balance between

the ‘interests of the teacher, as a citizen, in commenting

upon. matters’ of public concern ‘and the interest of the

State, as an-employer, in promoting the efficiency of the

public services it performs through its employees.

t

Id. ot 668. °°

In response to the Pickering decision, a number of courts

~ have re-thought their position in this area. Puentes v. Board of

Education, A N.Y. (1969); Meehan v. Macy,

5

392 F.2d 822 (1968). Their decisions further illuminate the

many complexities and differing factual situations which may

arise, and it is submitted that this Court should allow this

process of illumination. to continue through lower ’ court

decisions. C.f., Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70;77 (1955). Then, after a sufficient body of

experience has developed,. this Court may take’ the

opportunity to refine, its formulation of the rule governing the

accommodation . of sthe First Amendment~- to public

employment. To do so now, however, would be to proceed

without the benefit and assistance which the decisions of

other courts would provide. a

B. A decision in this case would be of importance only

to the litigant, and not to the public in general.

As this Court observed in its first remand of this case to

the Alaska Supreme Court, the statutory law of Alaska under

which Petitioners were non-retained has been significantly

altered since their. nonretention. App. 42-438. It has, in fact,

been altered in such a manner that it would be impossible for

_ the situation presented by Petitioners to arise again. A.S.

14.20.170(a) (2); 14.20.095. (See Appendix “A’’). Since

Petitioners. would be the only people who could conceivably

be directly affected by a decision in this case, the decision

would be. without public importance. In such a situation,

certiorari should be denied. Rice v. Sioux City Memorial Park

Cemetery, 349 U.S..70 (1955); District of Columbia v.

. Sweeney, 310 U.S. 631 (1940); Layne & Bowler Corp. v.

Western Well. Works, Inc., 261 U.S. 387 - (192 3).

In addition, since the Pickering case laid down the general

considerations relevant. to decision in that and similar cases, a

‘ decision-in this - case ~ would not have significant value as

precedent for the decision of futuré cases. Thus, the affect of

any decision in this case would be even further restricted, and

even less ‘‘public’’. It is well established law in this Court that

certigrari “is not granted” merely .to decide interesting

‘ intellectual -problems, or’ even to dec ide limited controversies.

Rather, *the policies governing: the issuance of a writ of

certiorari are designed to reserve this Court’s time and

attention ‘for problems of broad significance. Rice v. Sioux

@°

6

' City Memorial Park Cemetery, supra, at 74. In the area of the

right of free speech enjoyed by public employees, the broad

and significant question has been decided by the Pickering

case. To grant certiorari here would be of stich limited

significance that the writ should be denied.

III.

THE DECISION OF THE ALASKA

SUPREME COURT IS IN ACCORD

WITH THE DECISIONS OF THIS COURT.

In the Pickering decision, this Court considered. four

different factors in evaluating the State’s interest in regulating

Mr. Pickering's freedom of speech. After this consideration, of

course, it eoncluded that the State had no sufficient interest

in such regulation and struck down Pickering’s dismissal.

When Watts us..Seward School Board was remanded to the

Alaska Supreme Court to be considered in the light of

Pickering, the Alaska Supreme Court faithfully carried out the

mandate of this Court. Since Pickering, Watts and Blue were

all high school teachers, it seems likely that whatever

potential State interest there is in regulating the freedom of»

speech of these employees would be the same in both cases. —

Thus, the Alaska Supreme Court evaluated the State interest

in regulating the conduct of Watts and Blue by considering

the same issues and problems considered by this court when it

decided Pickering. After such reconsideration, the Alaska

Supreme Court held that the nonretention of Petitioners

Watts and Blue was justified.

The issues considered by the Alaska Supreme Court are as

follows: : :

1. Whether or not the statements by Watts and Blue

would interfere with the close, working relationships and

harmonious functioning of the school system.

2. Whether or not the issues raised by Watts and Blue

were of general public concern.

3. Whether or not the Seward School Board could have

7

easily refuted Petitioners’ accusations by references to the

public record.

4. The public reaction to the accusation of Watts and

Blue. :

In Pickering it was .determined by this Court that

_Pickering’s statements were not directed at co-workers or

immediate superiors; that. the .issues discussed by Pickering

were of general public concern, since they were the subject of

a local election; that his false statements were easily refutable

by the school board ‘by a simple réference to the public

record; and that the public reaction to Pickering’s statements

‘was one of marked apathy. The. Alaska Supreme Court, after

an independent review, of the record, 454 P.2d 732,37,

determined that the situation presented by Petitioners was

precisely the opposite of the Pickering case in each of these

four respects.

Since this Court, while reserving to itself the right to

make an independent examination of the record, always

accords great, if not -controlling, weight to factual

determinations of the state courts, Pickering v. Board of

Education, supra at 578, n.2, and will only make an

independent review of the record where it appears that a

flagrant abuse of the First Amendment rights would otherwise

occur, Milk Wagon Drivers Union v. eadowmoor Dairies,

Inc., 312 U.S. 287,94 (1940), certiorari should be denied. The

factual determinations made by the Alaska Supreme Court,

after its independent review of the record, give no indication

that a flagrant abuse of First Amendment rights has taken

place, and, in the absence of such abuse, this court should

accept the determinations of the Alaska Supreme Court. Once

this is done, it is clear. that Watts presents an entirely

different situation from Pickering.

In Pickering, this Court determined that the State of

Illinois had no greater interest in regulating Pickering’s

speech than it did in regulating the speech of its citizenry as a

whole. In this case, however, the state interest in regulating

the speech of Petitioners is' substantially stronger ‘than

Alaska’s interest in regulating the speech of its citizenry as a

whole. As this ee arm ies the State has a significant

ORT REE rs

8

interest in assuring the smooth and harmonious functioning of

its Civil Service.

At the same time it cannot be gainsaid that peo has

interests as an employer in regulating the speesh of its

employees that differ significantly from those it pOssesses

in connection with regulation of the speech of the

citizenry in general.

Pickering v. Board of Education, supra, at 568. To this end,

one of the considerations which must be weighed is fhe

extent to which the Petitioners’ speech concerned people“with

whom they had every day working contact. In this case, the

statements made by Petitioners Watts and Blue concerned the

Superintendent of Schools, who performed e sentially the

‘same functions as the principal would in Reps school

system. 454 P.2d 732, 35. In the Seward schools Petitioners

had constant contact with the Superintendent, and worked

closely with him to: fulfil] the educational needs of the

community. After independently reviewing the record, the

Alaska Supreme Court determined that the statements made

by Petitioners concerning the Superintendent would interfere

with the close working relationship which had ‘existed

previously. Jd. . é

In Pickering the statements made concerned an_ issue’

which had _ been placed before the electorate during a

municipal school bond election. In Watts, on the other hand,

the statements made directly concerned the job performance

of the Superintendent of Schools. App. 56-60. Whether or not

to retain the Superintendent of Schools is not a question

which would ever come before the electorate of Seward, since

the Superintendent served at the pleasure of the Seward

School Board. Since this was not a matter upon which, in the

normal process of democratic decision making, the electorate

of Seward would pass, the Alaska Supreme Court determined

that the State’s interest in regulating the speech of Petitioners,

as opposed to the need for informed public discussion, was

significantly more Ibecelagt than it had been in Pickering.

454 P.2d 732, 35. Similarly, it should be observed that the

regulations the State imposed upon Petitioners would tend to

promote informed debate. among members of the school

a Sa

9

board, the group ‘with decision making power in this instance,

even though it may have temporarily curtailed public

discussion of the issue.

In Pickering, this Court observed that the matters which

Pickering misstated could have been easily refuted by the

School Board through references to the public record.

The Board could easily have rebutted appellant’s errors by

publishing the accurate figures itself, either via a letter to

the same newspaper or otherwise. We are thus not

presented with a situation ‘in which a teacher has

carelessly made false statements about matters so closely

related to the day-to-day operations of the school that

any harmful, impact on the public would be difficult to

counter because of the teacher’s presumed greater access

to the real facts.

Pickering v. Board of Education, supra, at 572. In this case,

however, the matters complained of dealt precisely and

exclusively with

... matters so closely related to the day-to-day operations

of the schools that any harmful impact on the public

would be difficult to counter because of the teacher’s

presumed greater access to the real facts.

Id. In this situation, the careless falsehoods. of Petitioners _

could do substantially more harm to the efficient operation of '

the school system than could the accusations of Pickering.

Lastly, in Pickering the public reacted. only apathetically

to Pickering’s accusations. In Watts, however, the reaction was

quite different. This was the initial phase of a campaign to

have the Superintendent of Schools dismissed, and occasioned

a substantial amount of public discussion. App. 182 (Blue);

160-61, 454.P.2d 732,37. Thus, it is clear that. this is not a

case, such as Pickering, where nonretention was based merely

upon the injured feelings of those against whom the public

discussion was directed.

On all these counts the interest in the State of Alaska

regulating the speech of Petitioners is substantially greater

10 | mal

than the interest of the State of Illinojs in regulating th

speech of Mr. Pickering. Thus, after balancing these interests

against the interest of Petitioners in being able to immediately

make their grievances public, rather than taking the minimal

amount of time necessary to comply with Regulation E-7, this

Court should deny certiorari on the ground that the decision

by the Alaska Supreme Court is consistent with the prior

decisions of this Court, and with Pickering. °

CONCLUSION

For the foregoing reasons and on the strength of the

foregoing. authorities, Respondent prays that certiorari be

denied. . .

Respectfully submitted,

Theodore M. Pease, Jr.

BURR, PEASE & KURTZ, INC.

825 West Eighth Avenue

Anchorage, Alaska

Attorneys for Respondent,

Seward School Board

Dated: January 7, 1970

2

In opposition to the second petition for certiorari filed in this case

Respondents also argued that the decision of the Alaska Supreme Court

was consistent with prior decisions of this Court. The issues covered

there have, however, receded considerably in importance since Picker-

ing, and will therefore only be covered by reproducing the relevant

portion of Respondents’ previous brief in Appendix “‘B”’.

ee

11 .

APPENDIX A

A.S. 14.20.095

Right to comment and criticize not to be restricted. No

bylaw or regulation of the commissioner of education, a

. School board, or local school administrator may restrict or

modify the right of a teacher to engage in comment and

criticism outside school hours, regarding school personnel,

members of the governing body of any school or school

district, any other public official, or any school employee, to

the same extent that any private individual may exercise the

right.

AS. 14.20.170

' Dismissal. (a) A teacher, including a teacher who has

acquired tenure rights, m&y be dismissed at any time only for

the following causes:

(1) incompetency, which is defined as the inability or the

unintentional or intentional failure to. perform the teacher’s

customary teaching duties in a satisfactory manner;

(2) immorality, which is defined as the commission of an

act which, under the laws of the state, constitutes a crime

involving moral turpitude; or

(3) substantial noncompliance with the school laws of the

state, the regulations or bylaws of the department, the bylaws

of the district, or the written rules of the superintendent.

(b) A teacher may be suspended temporarily with regular

compensation during a period of investigation to determine

whether or not cause exists for the issuance of a notification

of dismissal according to §180 of this chapter.

a)

12

7 APPENDIX B

THE DECISION OF THE SUPREME COURT OF

ALASKA IS NOT IN CONFLICT WITH THE DE-

CISIONS OF THIS COURT

The Supreme Court of Alaska did not base its ‘de-

cision on the abstract proposition that public employ-

ment is a privilege not a right, nor on the theory that

the power to withhold employment entirely includes the

power arbitrarily to place conditions on employment

when. granted. Instead, the court held that the Seward

School Board was justified in not renewing petitioners’

contracts because their activities brought them and the

teaching profession into public disgrace and undermined

the morale and discipline of the local school system.

Petitioners’ discharge was sustained because of thé spe-

cific finding that their activities threatened. to impair

the efficiency and integrity of the school system. This is

an interest recognized by this Court in United Public

Workers of America v. Mitchell, 330 U.S. 75 (1947) as justi-

fying restrictions on the otherwise constitutionally guar-

anteed rights of speech and association of government

employees “ ‘within reasonable limits,’ even though the

regulation trenches to some. extent upon unfettered

political action.” 330 U.S. at 102. Even the state cases

which petitioners assert to reflect constitutional phil-

osophy. antithetical to that of the Supreme Court of

Alaska, have recognized the compelling interest of state

agencies in preserving an efficient, harmonious internal

administration. E.g., Fort v. Civil Serv. Comm’n, 61 Cal.

2d 331, 38 Cal. Rptr. 625, 392 P.2d 385, 389 ( 1964), where

the Court stated:

~ A strong case, we think, can also be made for

the view that permitting a public employee ta:run or

campaign against his own superior has so disruptive

an effect on the public service as to warrant restric-

tion. :

\

In the case at’bar there can be no doubt of the divi-

siveness of petitioners’ conduct.2 Since petitioners do

not dispute the conclusion of the school board that they

engaged in activities damaging to their own and to their

613

employer’s professional prestige, it can only be assumed

that they are arguing that in spite of their disruptive

conduct which threatened to impair the efficiency and

destroy the integrity of the school system, they cannot

be denied employment within the school. This claim is

without merit.

Moreover, petitioners’ false statements for which

_ they were dismissed are not entitled to constitutional

protection since they were made with reckless disregard

for truth. The Supreme Court of Alaska stated:

The production and distribution of the Open Letter -

was a time-consuming and deliberate act. The false

statements contained in it were not made in heated

debate. The factual basis for the charges could have

been verified by appellants if they had taken the

time to do so.

421 P.2d at 607. Those are the elements of recklessness

which, as noted by the Supreme Court*of Alaska, renders

a statement beyond constitutional protection. Cf. Garrison

v. Louisiana, 379 U.S. 64, 75 (1964). <o

_ Nor is the statute under which petitioners were non-

retained unconstitutionally vague or overbroad. The

phrase, “conduct of the person tending to bring the in-,

dividual concerned or the teaching profession into public

disgrace or disrespect” was intended to be a “catch-all”,

serving the same purpose as phrases such as “conduct

unbecoming a teacher” or “unprofessional conduct”. 421

P.2d at 590. These phrases do cover a broad range of

conduct; necessarily so because no statute could be

framed to include with specificity all of the particular

acts which might render a teacher unfit. The necessity

of using a broad standard for dismissal is indicated by the

2E.g. In an attempt to discredit the superintendent, petitioner

Blue in May or June of 1959 contacted and questioned at least

three residents of the town where the superintendent had

previously served concerning his character, administrative

policies and personal habits while serving there. 421.P.2d at

599.

14

fact that this technique is used in many states and by

the Federal Civil Service.3

In attacking the constitutionality of such a tech-

nique, petitioner has misunderstood the fundamental

difference between statutes which impose prior condi-.

tions on employment (oaths) or which prohibit specific

activities ‘a county charter as cited in Fort case) 4 and

statutes authorizing dismissal for cause with the right

of a hearing. All of the cases petitioner cites deal with

either prior conditions or specific acts that are prohibited.

The constitutional defect in-laws such as the county char-

ter in the Fort case is plain. Specified kinds of political

activity are prohibited; any hearing the employee gets

is only to see if he engaged in the prohibited activity.

There is no judicial. determination that his particular

activity actually interfered with the internal functioning

of the agency. Similarly, the requirements of an oath

that an employee has never been a member of a political

party is too broad and at times vague because, again the

only‘ question the employee can litigate is whether he

signed the oath, or whether he was a member of a group.

He has no chance to show that his membersip was in-

nocent or that he personally did or does not share the

35 U.S.C. $652 (a) (1965) reads:

No person in the classified ¢ivil service of the: United

‘States shall be removed or suspended without pay

therefrom except for such cause as will promote the

efficiency of such service... .

See statutes cited in Beilan v. Board of Educ., 357 U.S. 399,

406 n.8 (1958) and accompanying text.

4 No officer or employee of the county in the classified

civil service shall directly or indirectly make, solicit,

or receive or be in any manner concerned in making,

soliciting or receiving any assessment, subscription, or

contribution tor any political party or any. poltiical

purpose whatsoever. cies

Fort v. Civil Serv. Comm’n, 61 Cal. 2d 331, 38 Cal. Rptr. 625,

392 P.2d 385, 386 (1964). :

15

illegal aims-of the group. In such laws, the legislature

has made the judgment that anyone who engages in the

activity or fails to sign the oath, regardless of the actual

circumstances, is unfit for public employment. This legis-

lative judgment is what courts review when striking

down the laws for vagueness or overbreadth. These laws

must ue drawn narrowly to assume that anyone who

does engage in.the activity will be actually unfit.

It is clear that when a hearing is granted under a

“catch-all” phrase the question to be determined is un-

fitness in fact. In a dismissal hearing for ‘‘good cause”’

a court rather than determining whether the employee

did any specific act which may or may not bear relation-

ship to his ability to serve effectively must determine

that the employee's actions render him. unfit. In “dis-

. Missal for cause” cases the legislature has not made any

judgment that a particular act renders an employee unfit.

- The legislature instead has entrusted agencies-and courts

with the task of finding whether a particular employee's

actions constitute good cause for dismissal. This i is a very

specific procedure. :

In the few cases where such a dismissal procedure ~

has been attacked for vagueness or overbreadth it has

been upheld. :

In Board of Educ. v. Swan, 41. Cal. 2d 546, 261 P.2d

261, 266 (1953), cert. denied, 347 U.S. 937 (1954) the Court

_rejected an attack on the standard “unprofessional con-

duct” as being void for vagueness, with the following

statement:

As was said in the Goldsmith case, 66 Cal. App. at

page 168, 225 P. at page 787: ‘... the calling (of a

teacher) is so intimate, its duties so delicate, the

things in which a teacher might prove unworthy or

would fail are so numerous, that they are incapable

of enumeration in any legislative enactment... the

teacher is entrusted with the custody of children

and their high preparation for useful life. His habits,

his speech, his good name, his cleanliness, the wis-

16

dom and propriety of his unofficial utterances, His

associations, all are involved. His ability to inspire

children and to govern them, his power as a teacher,

and the character for which he stands are matters

of major concern in a teacher’s selection and reten-

tion. How can all these things be provided for and

offenses against them be particularly specified in a

single statute? . | .

° The question of vagueness; appears to be governed’

by Beilan v. Board of Educ., 357 U.S. 399 (1958). In that

case a’ teacher was dismissed under the disqualifying

ground of “incompetency.” His offending conduct was

refusing to answer questions propounded by his superior

in private concerning his possible association with com-

munist groups. The teacher’s contention that due pro-

cess of law was violated by including. his refusal to

answer within the term “incompetency” was rejected by

the Court. The Court mentioned that the Pennsylvania

statute under which he had been dismissed, “unlike those

of many other States, contains no catch-all phrase, such

as ‘conduct unbecoming a teacher,” to cover disqualify-

ing conduct not included within the more specific pro-

visions.” 357-U.S..at 406. By inference then, it would

have been constitutionally permissable to have dis-

missed the teacher under a catch-all standard. The Court

proceeded to note that the term “incompetency” had been

broadly interpreted by the Pennsylvania Court and that

its dictionary definition was not particularly prescrip-

tive. Since this was so, the Court held, the extension of

the term “incompetency” to include the teacher’s refusal

to answer was not inconsistent with the United States

Constitution. ,

The basic teaching of Beilan and Swan is that statutes

setting forth all possible legitimate grounds for non-

retention of teachers cannot be drafted. Because of this

fact the use of general standards in non-retention statutes

is constitutionally permissible.

/

17

CONCLUSION

For the foregoing reasons respondent prays that the

petition for certiorari be denied.

Respectfully submitted

THEODORE M. PEAsE, JR.

Burr, Boney & PEASE

825 W. Eighth Avenue

Anchorage, Alaska

Attorneys for Respondent,

Bie, Seward School Board

Dated: August 2, 1967