Brief for the Respondent in Opposition — Board of Public Education, School District of Philadelphia v. Intille (No. 448)

«> | FILED

| OCT 24 1950

JAMES 8. Chewaen, C'erk

IN THE

Supreme Court of the United States

October Term, 1960.

No. 448.

BOARD OF PUBLIC EDUCATION,

SCHOOL ss cnc OF PHILADELPHIA,

I Hf) mer,

- ?*

ANGELINA INTILLE, THOMAS DEACON

and SADIE T. ATKINSON, ,

/

PR spe pele } .

On Petition for a Writ of Certiorari to the Supreme ‘Court

of Pennsylvania.

Brief for Respondents in Opposition.

_

‘4. Hat apie EVITAN,

FraxkursS Port,

12th blower Packard Pile

international, 711 So. Skh St, Phila. 42, Pa

IN THE ;

Supreme Court of the United States.

~Octoser Term, 1960.

No. 448.

BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT °

OF PHILADELPHIA, .

Petitioner,

r,

ANGELINA INTILLE, THOMAS DEACON axv SADIE

T. ATKINSON,

Respondents.

BRIEF ‘FOR RESPONDENTS IN OPPOSITION.

OPINIONS BELOW.

The opinions in the Supreme Court of Pennsylvania and

in the Courts of Common Pleas of Philadelphia County are

appended to the Petition for Writ of Certiorfari.

JURISDICTION.

Petitioner has invoked the jurtsdiction of this Court

under Title 28 U.S. C., Seetion 1257(3). But the Supreme

Court of sPennsylvania has held in these cases that public ,

school teachers having tenure may not be dismissed on the

statutory ground of S‘incompeteney’* as contained in the

Pennsylvania School Code of 1949, Art. XI, £1122, where

the charge of incompetency is based solely on the facet that

eo

2 Brief for Re spondents in Opposition #

the teachers, while being que oe nena hy a Congressional

Committee, refused to answer questions as to past Com

munist Party membership on the basis of a Fitth Amu

ment claim of privilege. No question under the Constitution:

or laws of the United States is raised: by this decision.

The Pennsylvania Supreme Court also held that the

dismissals of these teachers violated the due process claus:

as well as the privileges and immunities clause of the Four-

teenth Amendment to the Federal Constitution. The fact

remains, however, that’ the Pennsylvania Supreme Court

held respondents’ dismissals invalid becatse, as a matter of

state law, their conduct did not amount to incompeteney.

The decision, therefore, was based on adequate non-federal

grounds and there is no question over which this Court, ha-

_ Jurisdiction.

QUESTION PRESENTED.

Should this Court review a decision of the Pennsylvania

Supreme Court holding that the refusal, on a plea of the

Fifth Amendment privilege, by public school teachers having

tenure, to answer questions as to past Communist Party

membership asked by a Congressional Committee, did not

constitute incompetenecy within the meaning of the Penn-

sylvania Publie School Code of 1949, simply because that

decisionalso rules! that the dismissal of petitioners deprived

them of constitutional rights?

CONSTITUTIONAL AND STATUTORY PROVISIONS.

INVOLVED.

The constitutional and statutory provisions are set out

in the Peéition for Writ of Certiorari. An-additional stat-

tory provision involved is the Pennsylvania Loyalty Act ot

December 22, 1951, P. L. 1726, £§ 3, 5, 6, 7, 10, 15a; 65 Purd.

Pa. Stat. Ann., ¢{ 213, 215, 216, 217, 220, 225(a). It is

printed in the appendix hereto, tafra, pp. B la-B 5a.

Brief for Respondents in Opposition 3

STATEMENT OF THE CASE.

This is a proceeding under the tenure previsions of the

Pennsylvania Public School Code, .xet of Mareh 10, 1949,

PLL. 380, 6 1122, et seq. as amended, 2 Purd. Pa. Stat. Ann.

“V1-1122 et seq. The three respondents, publie school

teachers having tenure, were dismissed in) 1954 by the

Beard of Public Edueation, School District of Philadelphia,

on the ground of tnecompeteney contained in that Code,

The charge and the finding of incompeteney, in each

case, Was based solely on the refusabto answer questions of

the House Committee on un-American Activities relating to

past Communist associations, under ypleas of the Fifth

Amendment (97a, 68a). The use of the privilege was held

to be proof of a lack of civie responsibility and proper

‘professional ideals, and of faulty judgment, and it was

therefore equated with incompeteney.

It was agreed that there was no statute or rule promul-

gated by the Board of Education which dealt in any way, with:

a teacher's use of the Fifth Amendment in any proceeding.

The Superintendent of Public lustruction affirmed each

dismissal. Separate appeals from that order were dismissed

by Courts of Common Pleas of Philadelphia County. The

separate appeals taken by the respondents to the Supreme

Court of Pennsylvania. were consolidated. That Court, by

a six-to-one decision, reversed the Ueeisions below. It held

that the dismis als violated the due process clause and the

privilege and immunities clause of the Fourtee nth Amend-

ment to the Federal Constitution.

The Supreme Court of Pennsylvania also specifically

held that respondents’ refusal to answer a Congresstonal

Committee*s questions relating to possible past disloyal as-

sociations did not constitute incompyteney within: the in-

tended scope of that term as used in the Public Se thool Code

of Pennsylvania (36a, 72a-7: it)..

7

4 Brief for Respondents in Opposition

ARGUMENT.

oe

Respondents had acquired fenure and could be deprived

of their positions as teachers only for the causes enumerated

in the Pennsylvania Public School Code of 149 (la). - Peti-

tioner dismissed them on the ground of incompetency, basing

its action entirely on the fact that each had claimed the

privilege against self-incrimination to refuse to answer a

Congressional Committee's questions about former (‘om-

munist Party affiliations. °

Quite aside from the constitutional rulings challenged

here, the Supreme Court of Pennsylvania held .that = ré-

spondents’ dismissals were invalid because as a matter of

state law their conduct did not amount to incompetency.

At the outset of the opinion the Court made elear that

the case presented not only the constitutional issues, but

also thé **additioral question’’ of whtther respondents’ plea

of privilege ‘constituted incompeteney within the intent of

Pennsylvania's Public School Code of 1949°* (56a).

After disposing of the constitutional points, the Court

concluded the opinion with the distinet and independent hold-

ing that respondents’ refusal to answer the-questions did not

amount to incompeteney (72a:73a).

This holding, far from being ‘interwoven’? with con-

Atitutional determinations, rested entirely on an analysis of

" the scope of ‘tineompeteney™ under the Publie School Code

of 1949, in the light of the subsequent provisions of the

Pennsylvania Loyalty Act of 1951 (B la-B ja). The Penn-

sylvania Supreme Court declared that the latter statute is

the exclusive remedy for disloyal or subversive activities or

affiliations. It then held that since the questions asked of

petitioners were relevant only to possible disloyalty or sub-

version, the mandatory proceedures established by the Loy-

alty Act could nof be ignored by the device of treating the

refusal to answer as incompetency within the meaning ot

the Publie School Code.

Brief for Respondents in Opposition 5

The Court was at pains to make clear that the decision

was broader than the constitutional issues alone would have

warranted. Fram the constitutional point of view, it was

important that the dismissals*had been based on a claim of

federal privilege in a federal proceeding. This was what

made the case different from Board of Public Education v.

Beilan, 357 U.S. 399 (1958) (Ginvolving the questions of an

administrative superior) and brought it within the authority

of Slochower v..Board 6f Higher Education of New York

City, 850 U.S. 551 (1956) (61a-67a). But, in defining in-

competency as a matter of state law, the Pennsylvania:

Supreme Court went far beyond this. For it deelared that

where the questions relate to disloyalty or subversion, Penn-

sylvania - will not: permit dismissal. for incompetencey.

‘whether the question propounded be by a Congressional

Committee or -by the Board of Education itself’? (72a). .

‘Anything in the Berlan case to the céntrary is herewith

overruled for the future’* (73a). .

The law of Pennsylvania is now declared to be that it

is not incompetency per se for a teacher to refuse to answer

questions about former Communist affiliations. If a

teacher’s tenure rights are to be declared forfeit as a result

of such refusal, it can only be by way of proceedings under

the Pennsylvania Loyalty Act (B la-B 5a). This result is

reached by a natural interpretation of the relative ambits

‘of the two Pennsylvania statutes. It poses no question over |

which this Court bas jurisdiction. = ;

CONCLUSION.

The decision of the Court below is based on an adequate

non-federal ground, and the Petition should be denied. »

Respectfully submitted, *,

A. Harry Levitan,

Fraxkuinx Pout,

sees | Attorneys for Respondents.

Appendix. .

ADDITIONAL STATUTORY PROVISIONS.

Pennsylvania Loyalty Act of December 22, 1951, P. L.

1726, 65 Purdy Pa. Stat:

‘Ineligibility for Employment or Appointment to Office.

No subversive person, as defined in this act, nor any

person as to whom on all the evidence there is reasonable

doubt coneerhing his, loyalts to the government’ of the

United States or: the Commonweatth of Pe nnsvivania, shall

be eligible for employment in or appointment to any office

or any position of trust or profit in the government of

or in the administration of the business of this Common.

wealth, or of any school district, county, municipality or

- other political’ subdivision of this Commonwealth. 191,

Dee. 22, P. L. 1726, § 3. 65 Purdon’s Pa. Stats. Ann. © 215.

Present Employes; Oath; Discharge.

The appointing authority of cach person, including

teachers and other employes of the public school system

who, on the first day of March, one thousand mine hundred

fifty-two, shall be-in the employ of the Commonwealth of

Pennsylvania or of any of its political subdivisions, other

than those holding State or hbocal elective offices of any

kind, shall require such person to, and every such person

shall, on or before the first day of April, one thousand nine

hundred fifty-two, make a written statement, under oath

or affirmation, which statement shall contain notice that it

is subject to. the penalties of perjury, and shat! be in the

following form:

(B la)

“ Appendix

Pe Coreen , do solemnly swear (or affirm)

that I will support, obey and defend the Constitution

of the United States and the Constitution of this Com.

monwealth, and that I will discharge the duties of

Ne eT eee oe . With fidelity.

= or I do further swear (or affirm) that I do

not advocate, nor am.I knowingly a member of “any

organization that advocates, the overthrow of the goy-

ernment ofthe United’ States or of this Commonwealth

by force or violence or other unconstitutional means,

or seeking by force or violence to deny other persons

their rights under-the Constitution of the United States,

or of this Commonwealth.

‘*And I do further swear (or affirm) that I wil!

not so advocate nor will ' 1 knowingly become a member

of such organization during the period that I am an

employee of the Commonwealth of Pennsylvania (or

political subdivision thereof).’’

Any persons failing or refusing to exceute either state:

ment required hereby shall be discharged mamnesenntety es

the proper appointing authority. 1951, Dee. 22, P. L.

< 3. 60 Purdon’s Pa. Stats. Ann. § 215.

Investigations.

Any appointing authority may at any time, upon writ-

ten complaint, investigate any person, including teachers

_and other employes of the public school ‘system, appointed

or employed by him, to determine whether he is a-subver-

sive person. Lf, upon any investigation, ft appears that:

sueh person is a subversive person, the person shall imme-

diately be privately and confidentially notified of the recom-

mendation by the appointing authority. No publie an--

nouncement, release, statement or comment concerning thie

investigation, recommendation or notifies ition shall be mide

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Appendix : BoSa

by the appointing authority in any way whatsoever, unless

and until the person so notified is discharged pnder section

seven of this act. 1951, Dee. 22, PLL. 1726, 5 6.65 Purdon’s

Pa. Stats. Ann. 216. | , |

_Hearing Before Appointing Authority.

Any person, including teachers and other employes of

the public school system, who has been so notified under

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

appointing authority within thirty (30) days after reeeiv-

ing said notification. If no hearing. is requested ‘within

thirty (30) days after said notification is received, the

person sHall immediately be discharged by the appointing

authority. He may appear before such appointing author-

ity personally, accompanied by counsel or representative

af his own choosing, and present evidence on -his own be-

half through witnesses. The *person who has been so

notified shall at the same time be further informed in writ-

ing of such hearing, at least ten days before the day set for

-the hearing, and shall be informed therein of the nature

of the charges against him: and the person who has been

- so notified shall be informed in the notice (1) of his right

to reply to such charges-in writing within ten days after

_the date of service, (2) of his right to a hearing on such

charges before the, appointing authority, which hearing may

be private and confidential or may be publie, at the option

of the person so notified, and (3) of his right to appear be-

fore such appointing authority personally, to be accom.

panied by counsel or representative of his own Ghoosing,

and to present evidence on his own behalf through Witnesses.

It, after due hearing, it is determined by the appointing

authority by a fair preponderance of the evidence that the

person who has, been so notified is a subversive person, as

defined in this aet, the persen who has been so notified

shall -he discharged; otherwise, the recommendation shall

be ignored. Said determination shall be made within sixty

B 4a A ppe ndir .

(60) days after the hearing. If the appointing authority

shall be comprised of three or more members, a vote of

two-thirds of the members shall be necessary in ‘order to

discharge a person, ©1951, Dee, 22, Po. 1726, 6 7. 65 Pur-

don’s Pa. Stats. Ann. § 217,

Appeals to the Superintendent of Public Instruction.

After a final determination of discharge under this act

by an-appointing authority, any teacher or other person

employed in the publie school system of the Commonwealth,

who beli¢ves himself aggrieved be such determination may

appeal on the record from the determination -by an appli.

cation in writing to. the Superintendent of Public Instrue..

tion of the Commonwealth within twenty days after reeciving

written notice of such determination. The superintendent

shall seta time and place: for the hearing of the appeal,

which hearing shall be not more than thirty (80) days

after receipt thereof, and give due notice of said hearing

to the appellant and to the appointing authority whose

determination is under review. The hearing shall be held

by the superintendent or by a person or persons, not ex:

ceeding three, designated by the superintendent in. writ-

ing to hear the appeal in his behalf. The superintenden,

in his diseretion, may designate such person or persons to

hear such appeal and to report to him. The persons so

designated by the superintendent may be officers or em-

ploves of the civil serviee of the Commonwealth. The per-

son or persons holding the hearing may make such inquiry

as may be deemed advisable. Within sixty (60) days after

the hearing on appeal, the superintendent shall affirm or

reverse the findings and determination under’ review, and,

‘in the ease of reversal, shal) order the reinstatement of the

appellant, who shall be entidled to baek pay from the date

of his discharge. 1951, Dee. 22, P. L. 1726, £10. 65 Pur-

don’s Pa. Stats. Ann. © 220.

oe

Appendix B 5a

Effect and Applicability of Act.

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

to discharge any person for any cause other than those pro-

vided for by this act or without cause under existing law.

"No procedure. provided by any existing tenure or. civil

service law shall be applicable in any proeeeding under this

‘act. 1951, Dee. 22, P. L. 1726 6 15(a).) 65 Purdon’s Pa.

Stats. Ann. § 225(a).