# Petition for Writ of Certiorari — Board of Public Education, School District of Philadelphia v. Watson (No. 449) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0648%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text EN. DHE Supreme Court of the United States October Term, 1960. BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA. GOi.DIE ‘WATSON. PETITION FOR A WRIT OF CERTIORARI TO THE .. SUPREME COURT OF PENNSYLVANIA. ‘ 8 f se BS Ha i oat ete Sa LY \' Watben & Ricavo, C37 Caan eat | Seotember 2s. 2oga, . INDEX. Citations To Orinions Betow ............. Mee es IO oe ear A eRe ee Ape eae hae CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... seine thane eg tig Oe Re EET OLE ea REASONS FoR GRANTING THE WRIT ............7.5........ satin, crams CEE SE CECE ERE OORT Tea ? AppenpDIxX A-—CONSTITUTIONAL AND STATUTORY PROVISIONS ad an ac EE ee ene Ee eA uh cara Constitution, Amendment I ......... PN Aa ie? Gn Constitution, Amendment XIV, Section 1 ...-.......... Pennsylvania Public ‘School Code we Weer, 8182? APPENDIX B—Orrnions ces etn lt ER GEEE ERA Ae Rae aOR Opinion of Superintendent of PubliceInstruction in Appeal of Goldie Watson .:.....0.00..... ae ocatcas 5 Opinion of Superintendent of Public Instruction in Appeal of Solomon Haas ...... a te) BN a Opinion of Court of Common Pleas in Appeal of Goldie ~ Watson APARNA RENO E NORA SE CES K 5 RR Ao Opinion of Court of Common Pleas in Appeal of Sadie SM ene Te fa Meier ns ed oan, : ‘Dissenting Opinion of Justice-Musmanno .......... Dissenting Opinion of Justice Eagen ..... SO APPS 6a - e TABLE OF CASES CITED. 4 é ~~ Se. bie State Bank v. Bryan, 282 U. S. 765 (1931) ............. 10° dler v. Board of Education, 342 U.S. 485 (1952) ........ or a) eilan v. Board of. Publie Education, School District of Phila- Guetta, G57 VU. S. SOP (IGGBY: 5. i cicvnccnusvancscus 6,9 oard of Public Education, School. District of Philadelphia v. Intille, Deacon and Atkinson, 401 Pa. 1,— A.2d—.... 5.6 nterprise Irrigation District v. Farmers Mutual Canal Co., GG |e 2 eidianecense 10 arner v. Board of Public Works of Los Angeles, 341 U. S. PUT IEDY oss ddscss as Np oes OR . 8 erner v. Casey, 357 U.S. 468 (1958) 2.00.02. cece cee 6 elson et al. v. County of Los Angeles, 362 U. S. 1 (1960) 6, 8,9, 10 lochower v. Board of Higher Education of New York City, Boe Bie Ge BOk CUVOR) oss keeces RU stan ress cients core tate Tax Commission v. Van Cott, 306 U.S. 511 £1939) aoe 10. STATUTES CITED. Page emnsylvania Public Sch: vl Code of IND, P. L. DB, Sec tion Abas 24 Purdon’s Ta. Statutes Ann. Section 11- 1322. ree § U.S. C. Section 1257(3) 1.2.2.5 ASTON By pe epee (+ Byrn Wan a, ae 2 = Sunssledieea: oo EAR PAL Gri oan GR Laren gna 2,4 PO Seivercecruess ee ee cect See E Ree cl eew tek in as oo 5 RMNIID oe aoc Gu wae rae a ee da chau she Ledaeek Ms PET] . | delph judgn the al T tion pendi: Court porter ofa. togeth 163 A pp. 38 IN THE * : Supreme Court of the United States. OcToORER Term, 1960. No. BOARD OF PUBLIC EDUCATION: SCHOOL DISTRICT OF PHILADELPHIA. Petitioner, . % v. GOLDIE WATSON, Respondent, ‘ITION FOR A WRIT OF CERTIORARI TO. THE SUPREME COURT OF PENNSYLVANIA. . Board. of Public Education, School District of Phila- hia prays that a Writ of Certiorari-issue to review the ment of the Supréme Court of Pennsylvania entered in ibove entitled case on June &0, 1960. CITATIONS TO OPINIONS BELOW. The opinion of the Superimendent of Public Instrue: of Pennsylvania is unreported and is printed in Ap- ix B hereto, infra, pp. 2a-2la. The opinion of the t of Common Pleas of Philade Iphia County is unre- d and is printed in. Appendix B hereto, infra; pp. 22a- The opinion of the Supreme Court of Pennsylvania, her with dissenting opinions, is reported in 401 Pa. 62, A. 2d 60 and is printed in Appe ‘ndix B hereto, elra Sa-Sta. to” Petition for a Writ of Certiorari _ JURISDICTION. The judgment of the Supreme Court of Pennsylvania was entered on June 50, 1960.) The jurisdiction of this court is invoked under 28 UL S.C. Seetion t257(3). The federal constitutional saeslian of whether responde nt's dismissal from employment violated the due process clause of the Fourteenth Amendment was first raised by the respondent tn the brief and argument on her appeal to’ the ¢ Court of Common Pleas of Philadelphia County from the decision of the Superintendent -of Public Instruction of Pe nusvivania. The Court of Common Pleas determined the constitutjonal question adversely @ respondent and in favor of the peti- tioner, Responde nt- thereafter raised this constitutional question in her brief and argument on her appeal to.the Supreme Court of Pennsylvania and that court determined the issue in favor of respondent, holding that her dismissal from employment was jn violation of the due process clause o! the Fourteenth Amendment. - QUESTION PRESENTED. 1. Does the dismissal of a publie school teacher on the- ground of incompetency for her conduet in refusing to an- swer questions concerning her former subversive affiliations in a public hearing before a Committee of the Congress of the United States with a claim that: the Committee had no right under the First Amendment to-ask her such questions, violate the due process: clause of the Fourteenth Amend- ment? Ks CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. The constitutional provisions involved are the First and Fourteenth Amendments of the Constitution of the United States. They aré printed in Appendix A, infra, p. la. The statutory provision involved is Article XI, Seetion 1122 of the Publie School Code of Pennsylvania, Act ‘of March 10, 1949, P. L. 30, 24 Purdon’s, Penna. Statutes Aun. Section 11-1122. It is printed in Appendix A, infra, p. la. Petition: for a Writ of Ce rlinvarié 3 STATEMENT. eae The respondent was dismissed on June 20, 1954 from *.e ¢ . : position af a public school teacher in. Philadelphia, by Board of Public Education of the School District. of adelphia, following a public hearing before the Board. Superintendent of Public Instruetion of the Common- th affirmed her dismissal. On appesl to the Court of mon Plea’ of Philadelphja. County, that eonrt affirmed order of the Superintendent af Public Instruction. and ‘ld the dismissal. . On further appeal, the Supreme Court of Pe nnsylvania rsed the decision below and held that the dismissal of andent Vv iol ited the due process clause of the F ourte enth ndment,. The ere had been employed as a teacher in the adelphia publie school system in 1931. She appeared, snant to subpoena, on February 17, 1954, before a Sub- mittee of the Un-American Activities Committee of the se of Representa: Ives, Congress of the U nited States, Subcommittee was holding hearings to investigate the nt of Communist infiltration in cducation.© At the time respondent appeared, the Subcommittee was investigat- the extent of Communist infiltration in the Philadelphia lic school system. y She gave the Subcommittee her name, address and a mé of her schooling and employment record as a teacher, was informed by counsel for the Commuttee that a Mrs. othy Funn had testified before the Committee that she known respondent as a member of the Communist Party. pondent was then asked whether she had ever been wa nber of the Communist Party. She refused'to answer the stion, stating that she would not answer any ofher ques- s about membership in organizations, associations, so- ies, people she had met, or-anything-else, She specifically ined to take advantage of the Fifth Amendment. When #3 E ’ : é © Petition for a Writ of Certiorari e question was‘repeated by ‘counsel for the Committee. spondent said that she would not answer it, and that it was ngemye of her constitutional rights ‘for you to bring me e and attempt to compel me to answer questions about my aaubaee, memberships, conferenees, or speeches" She was then asked the further question whether she d ever attended a Communist schodl i in New York State a school for instruction of Conimunist teachers. She. ated, ‘*T will not answer’’, and “I refuse to answer’’. She Is asked whether she had ever attended any Communist struction school at any place. .She refused to answer, ecifically -on the basis: of the First Amendment to the mstitutiqn. : She was asked the further qpestion as to whether she is active in work with the National Negro: Congress, a mmunist front organization, aid refused to answer, rely- x specifically on the First Amendment. She was informed by Congressman Scherer that she ix in contempt of Congress. She said that she had )een visedl by counsel of the risks and dangers of her position, at she assumed these risks and dangers because the posi- n was sacred to her, that.she held her rights sacred, and uld not permit the Committee to compel her to violate pm. %In response to the question as to whether she had ken the Loyalty Oath, she stated that it was a matter of blie reeord that she had taken it. The. final question asked r was whether she was a member of the Communist’ Party the time that she took the Loyalty Oath... She refused to swer the question on- ‘the hasis of the First Amendment . 17a). Respondent was charged by the Board of Publie Educa- n with incompetency, based on her refusal to answer the. estions of the Congressional Committee and her conduct fore the Committee, as showing a lack of professional nesses to be a teacher. The charge was brought under the nnsylvania Public School Code of 1949, P. L. 30, Section 22, 24 Purdon’s Pa. Statutes Ann. Séetion 11-1122. ee - I Publi at the that t ‘ that | the 1 Instr Plea: the o sion four- @NSW for ¢ com} ‘ 4 in Si ‘The sion Pub Dea ord -mis> cou men the Petition for.a Writ of Cortionar? {. 2 Respondent was accorded aa hearing before the Board of lie Eelucation on the charge, Was represented by counsel 1¢ hearing and testified in her defense that she believed the Committee was ‘tan inquisition”. After the hearing before the Board, the Board fourtd the charge of incompetency Was sustained and ordered respondent dismissed. The Supeérintendeut of Public ruction of the Commonwealth and the Court of Common is of Philadelphia County on further appeal, affirmed order of dismissal. The Supreme Court of Ponnsylvania reversed the deci- and ordered the reinstatement, of the r@spendent im a r-to-three decision. The court held that the reftisal to wer a Congressional Committed was not a lawful ground discharge of a professional employee on a charge of ie ipeteney, under the authority of the decision af this Court Slachower-v.. Board of Higher Education, 390 U.S. 591, Seourt also held that the case was controlled by its deer v handed down at the same time in the case of Board of. blic Education, School District of Philadelphia v. Tntille , acon and Atkinson, 401 Pa. 1, — A. 2d ~- in Which it had lered- reinstatement of three teachers who had been dis. sed for refusal fo answer the Congressional Committee, ipled with the claim of the privilege of the Fifth Ame nd- nt. | er ie . : This petitioner has also filed a petition for certiorar in » eases of Intille, ef al. 6 - _ Petition’ for a Writ of Cerliorari ‘REASONS FOR GRANTING THE WRIT. The decision of the Supreme Court of Pennsylvania in the present ‘case and in Board. of Public Education, Schou! Instrict of Philadelphia v. Intille, et al., 401 Pa. 1, — A. 2d -, upon the authority of which the present case was decided, misconstrue the effect of’ the decision of this Court in Slochower v. Board of Higher Education af New York City, 350 U.S. 551 (1956). They are also inconsistent in principle with the decisions of this Court in Lerner v. Casey, 357 U.S. 468 (1958), Beilan rv. Board of Public Education, Schou! District of Philadelphia, 357 U. S. 399 (1958), and Nv/s; etal. v. County of Los Anaqeles 262. S. 1 (1960). In the Slochower case, this Court reversed the summary dismissal of a teacher ina public college under-a New York City Charter provision which made the act of claiming the privilege against self-incrimination operate automatically to dischargé the employee without hearing. This Court also said (350 U.S. 558): ‘It, was one thing for the City authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events cecurring before a federal committee whose inquiry was an- nounced as not directed at ‘the property, affairs, or government of the « city, or . . .- official conduct of city’ employees’.’’ ~ The Supreme Court of Pennsylvania relied on this state- ment in the Slochowcr decision in coneluding that it was unlawful for the Board of Public Education to discharge the respondent for failure to answer a federal committee, bé- cause the Committee was not charged with the duty of aseer- taining the competency of Philadelphia school teachers, In reaching this conclusion, the court ignored the force ef this Court's decision in Nelson et al. v. County of Los Angeles, 362 U.S. 1 (1960). In that case this Court upheld Petition for a Writ of Certiorari the dismissal of Globe, a civil service employee of Los Angeles County, for refusal to answer the Subeommittee of the Un-American Activities Committee of the Honse of - Representatives, Congress of the United States. ‘The Court specifically considered the contention of the employee that the Slochower ease barred his dismissal. In distinguishing ~ Slochower, this Court said, 362 U.S. 6-8: ‘We, therefore, reach Globe’s contention that his “summary discharge was nevertheless arbitrary and un- reasonable. In this regard he places his relianee on Slochower v. Board of Education, 350 U.S. 551 (1956). However, the New York statute under which Slochower was discharged specifically operated ‘to lischarge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as con- fessed and made the basis of the discharge.” J). at 55s, +» This ‘built-in’? inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the faiture of the employee to answer. California has “not jpredt- eated discharge on any‘ built-in* inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have heid that the State has a legitinvate interest in securing. See Gorner t. Board of Public Works of Las Angeles, SAL UL S. 716 (1951); Adler ve. Board of Education, 342 U.S. 485 (1952). Moreover it must be remembered that here— unlike Slochower—the Board had specifically ordered its employees to appear and answer. . We conclude that the ease iseontrolled by Berlan er. Roard of Education. of Philadelphia, 857 U.S. 399 (1958), and Lerner rv. Casey, B57 U.S. 468 (4058). 14 is not determinative that the interrogation here was by a federal body rather than a state one, as it Was in those eases. Globe had been ordered by his employer as well ing Petition for a Writ of Certiorari as by California’s law to appear and answer questious before the federal Subeommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without: more, to answer the Sub- committée’s questions, we think that under the prin- ciples of Beilan and Lerner California could certainly have discharged him. .The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for‘as in Lerner, supre, at 477, California did not employ that claim as the basis for drawf&g an inference of guilt. Nor do we think that this discharge is vitiated by any deterrent effect. that California’s law might have had on ¢ilobe’s exercise of his federal claim of privilege. The State may nererthe- less legitimately predicate discharge on refusal to que: information touching on the field of security. See -Grarner and Adler, supra, Likewise, we cannet say asa matter of due process that the State's choice of securing such information by means of testimony before a federal body ean be denied. Finally, we do not believe that California’s grounds for discharge constituted an arhj- trary classification. See Lerner, id.. at 478. We con- clude that the erder of the Cour ty Board was not invalid under the Due Process Clause of the Fourtee nth Amend- ment.” (Emphasis added.) | The absence of a specific statute in Pennsylvania direct: teachers. or ether public employees to answer such question of a Congressional Committee does not ces tugs distinguish the present ease from Nelson, et al. . County of Los Angeles. It is patent that the Board of Public oe cation, as the employer of the respondent was vitally i te: osted in the information which the Congressional pe mittes was secking of the respondent in its investigation of the extent of Communist infiltration in the Philadelphia publie school system, and which was important to the em- — Petition for a Writ of Certierari 9, yvee's fitness. See: Garner. v. Board of Public Works of 8 Angeles, 341 U.S. 716 (1951); Adler ve. Board of Edu- fea 342 U.S. 485 (1952). No specific statute is required authorize the public employer to obtain information as a teacher's former’ Communist connections. . Beilan v. Board of Pubhe Edy ation, School Dis- trict of Philadelphia, 857 U.S. 399 (1998). In concluding that the Board’s dismissal of respondent Hated the due process requirement of the Fourteenth nendment, the Supreme Court of Pennsylvania ignored t only the principle of law ennneiated by this court in lson, ef al. ve. County of Los Angeles, but also the fact it respondent was dismissed on the basis of a. factual wing that her conduct before the Congressional Com-+ ttee manifested an attitude of ‘settled contempt, a tant disrespect and an arfogant disregard for a duly istituted) congressional committee and the important: netions it sought to perform” ,as stated in the dissenting: inion of Justice Hagen in the court below (infra, pp. 1-642). The Court ignored these facts, apparently because it id the view that the Sloct@irer. case forbade dismissal of employee for refusal to answer a federal committee, rardless of the nature of-the conduct or attitude which » respondent manifested before the Committee. The (jority relied in its opinion on the fact that the respondent d invoked the Constitution of the United States in justi- ition of her stand. Surely, however, an invocation of » Constitution does not prevent’ inquiry by the public em- ver into the employee's conduct which accompanied her liance on the Constitution. It is further submitted that there was no adequate inde- ident non-federal ground for the decision of the court low. The Pennsylvania Supreme Court also stated in its inion that the refusal of the respondent to, answer the estions of the federal Committee did not constitute in- 10 ‘ . Petition for a Writ of Certiorari competency within the meaning of the Pcansylvania Schoo! Code. While this may appear superficially to be a non- federal basis fer decision, it is apparent on closer examina- tion that this conclusion was not predicated on state law and was not an independent basis of decision. It was in- extricably interwoven with the federal constitutional ques- tions which the court below considered at length in holding : expressly that the dismissal violated fhe respondent’s eon. ; stitutional rights. In such eases this Court has clear. juris- diction. | State Tass Commisston «=. Van Cott, 306 U.S. 51i (1939); Abie State Bank v. Bryan, 282 U. S.. 765, 773 (1931); Enterprise Irrigation District rv. Farmers Mic tual Canal Co,, 248 U.S. 157, 164 (1917). The Court's conclusion relating to incompeteney rested upon the same interpretation of constitutional law which it made in considering the due process questions raised wider the Fourteenth Amendment.. The Court assumed, contrary > tw this Court’s decision in Nelson, et al. cv. County of Laos Anacles, that a state employee can not be dismissed for refusal to answey the questions of a tederal committee whenever the employee asserts a constitutional right as the basis of refusal to answer. The Court further assumed that when a public employee has refused to answer a Congres: sional Committee with an assertion of constitutional right, the émplover is precluded from considering the improper. disrespectful and defiant behavior of the employee aut the time of refusal to answer. It is poiated out particularly in the dissenting opinions in the Supreme Court of Pennsylvania, that the respondent was dismissed, not for a mere refusal to answer, but for. defiant and insolent conduct in ‘refusing to answer The question presented is of substantial lapertaice to the States and their cities, school districts atid other sub- Petition for a Writ of Certiorart 11: livisions. The decision of the Pennsylvania Supreme Court uuthily restricts the authority of a public employer over its employees, prevents an employer from taking disciplinary wtion against employees who refuse to answer questions of levislative committees and inhibits employers in evaluating the fitness of employees to serve and to teach children on the basis of their behavior when ealled to testify before ¢ Committee of Congress. The decision, if it is not eae and reversed, applies the Fourteenth Amendment in a way in which this court has not heretofore approved its application, with drastic effect of the power of states and political subdivisions, CONCLUSION. For the foregoing reasons this petition for a writ: of eertiorart should be granted. Respectfully submitted, Brewster Rioaps, 1421 Chestnut Street, Philadelphia 2, Pa., Attorney for Petitioner, Epwarp B. SoKEN, YIst St..and the Parkway. ‘Philadelphia, Pa., Sipney Le: Wick ENUAVER, Moxtcomery, MeCrackes, Waker & Ritoaps, Of Counsel, September 28, 1960. | APPENDIX A. | CONSTITUTIONAL AND STATUTORY PROVISIONS. Constitution, Amendment 1. “Congress shall make no law respecting an estab- lishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to ‘assemble, and to petition the Government for a redress of griev- anees.”” Constitution, Amendment XIV, Seetion 1. . ‘ALL persons born or naturalized in the United States, and subjeet to the jurisdiction thereof, are citi- vons of the United States and of, the State wherein they reside, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, Liberty, or property, without due process of law; nor deny to any, person’ within its jurisdiction the equal protection of the laws.’”’ Pennsylvania Public School Code of 1949, March 10, P. L. 30, art. XI, ¢ 1122, as’ amended. “oCanses for termination of contract The only valid causes for termination of a con- tract heretofore or hereatter entered into with a pro- fessional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, . 5: persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe : sie mee (1a) 2a Watson Opinion (Super. of Public Inst.) APPENDIX B. » OPINIONS BELOW. Commonwealth of Pennsylvania DEPARTMENT OF PUBLIC INSTRUCTION Harrisburg . EE Appeal of Goldie Watson, a) In the Office of the Super- Professional Employe, from] intendent of Publie In-, a Decision of the Board of | struction, Commonwealth of | Public Edueation of the ‘Pennsylvania, at Harrisburg, School District of the City of | Pennsylvania Philade ‘phia,” Pennsylvania. jNo. 111 January 17, 1955 Opinion GBidie Watson has appealed her dismissal from employ- ment as a professional employe in the School District of the City of Philadelphia. tn accordance with Section 1122 of the dog! School Code of 1949, the Act of March 10, 1949, P. L. 30, the’ Board of Public Education of Philadelphia Acund 7 rs. Watson with ineompetency and persistent and ‘wilful violation of the school laws of the Commonwealth. For the reasons specified in our opinion in‘the case of Solomon Haas, (Opinion No. %), dated November 18, 1954) we hold that the action of the Boird of Publie Education of the School District of the City of Philadelphia in dismissing Goldie Watson, the appellant, was proper. A copy of the Opinion in the case of Solomon Haas, referred to above, is _ attached hereto.and made a part hereof. This appeal is therefore dismissed and ‘the following order entered. . fa P} th fu th St iM in 3 . | Watson Opinion (Super. of Public Inst.) =. 3a Fixpixes or Facer 1. Appellant is a professional employe “in the School trict of the City of Philadelphia: 2. On February 17, 1954, appellant was called before sub-committee of the House of Representatives of the igress of the United States Investigating Un-American ivities, and asked certain questions dealing with her ty to the Government of the United States. Ajppellant ised to answer these questions, invoking the Fifth endment to the Federal Conséitution as the basis of her isal. 3. On February 19, 1954, appellant was rated ‘*unsatis- ory’? asa professional employe, by Dr. Louis P. Hoyer, rintendent of Schools of Philadelphia. 4. Dr. Louis. P. Hoyer, Superintendent of Schools or ladelphia, sent appellant a detailed letter informing her. | she was rated ‘tunsatisfactory’’ as a result of her re- tl to answer questions presented by the sub-committee of House of Representatives of the Congress of the United tes Investigating Un-American Activities. 5. On March 9, 1954, the Board ef Publie Education ferred charges against the appellant on the grounds of mmpetency and persistent and wilful violation of the vot laws of this Commonwealth, and after sending her a ement of charges, condieted a hearing in the matter ou we 4, 1954. 6. Asa result of such hearing the Board of Public Edu- on determined on June 29, 1954, that the appellant be nissed. ks ae 7. From the action of the Board of Publie Education appeal was filed with the Superintendent of Public In- ition on July 8, 1954. 8. No additional testimony was taken before the Super- ndent of Public Instruction. te ta Watson Opinion (Super. of Public Inst.) Conciusions or Law 1. The notice given to appellant of her uns: itisfactory rating was a sufficient compliance with the law, 2. Neither, Section 1123 nor Section 1125 of the Publie -School Code- of 1949, assamended, de: ing with the matter of rating professional emploves, requires that a copy of the actual rating card used in the rating of a professional em- ploye, be forwarded tothe professivnal employe when the rating is made. The official rating eaird of the Department of Public Instruction is but a euide in determining the rating of a professional employe. The forwarding of a detailed written statement of the unsatist: ictory rating Was a suffi- . cient — with the law.: The rating ef professional employes, which is the a the diseretion and the duty of superintendents of schools, is not limited to classroom performance, 4. A superintendent of schools is within his legal au- thority in asking proper questions of professional emplayes in the employ of his district, which questions relate to the fitness of such employes to continue to serve as teachers in the pa of the school district. . The ** Pennsylvania Loyalty Act,’ the Act of Decem- ber 29 1991, P.L. 1726, in no way insulates a-protessional einploye from bemg asked questions as to his loyaltyy and said Act is not involved in the present proceeding. 6. A superintendent’ of schools is justified in rating a professional employe *‘unsatis factory!’ when such employe refuses to answer proper questions relating to her loyalty asked of her by the supe rinte ‘indent of schools. The refusal to answer, referred to in conclusion No. 6 maa, constitutes ‘*inecompetency.”’ (8. The refusal ‘to answer, referred to in conclusion No. 6 herein, constitutes ‘‘persistent: and wilful violation of. the school laws of this Commonwealth.’ @ Watson Opinion (Super. of Public Inst.) da 3. A superintendent of se hools is justified in rating a rofessional employe *unsati sfactory’’ when’ such profes. onal employe refuses to answer questions put to‘her by a ib-committee of the House of Representatives of the Con- ‘ess of the United’ States and invokes the Fifth Amend- ent to the Federal Constitution on the ground that truthtul iswers thereto would tend to incriminate her, ADJUDICATION AND ORDER And now, this seventeenth day of January, 1955, after uring and argument and after reviewing all the testimony “door taken in the hearing, the appeal of Goldie Wiitson ma decision of the Board of Public Edueation of the hool District of the City of Philadelphia, Pennsylvania, eging that the Board of Public’ iducation improperly missed her as.a professional employe, is hereby dismissed | the action of the Board of Publie Edueation is affirmed, By Francis B. Haas, : Superintendent of Public Instruction. 6a Haas Opinion (Super. of Public Inst.) Commonwealth of Pennsylvania DerantTMENT oF Pusniic [NstructTion Harrisburg ; eo Appeal of Solomon Haas, a} In the Office of the Superin- Professional Kmploye, from} tendent of Pubjie Instrue- ‘a Decision of the Board of | tion, Commonwealth — Gt Public Edueation of the f Pennsylvania, at Harris. School District of the City of | burg, Pennsylvania Philadelphia, Pennsylvania } No. 90 November 18, 1954 OPINION Solomon Ilaas has appealed his d’smissal from employ- ment as a professional employe in the City of Philadelphia. In accordance with Seetion 1122 of the Publie Sehool Code of 1949, the Act of March 10, 1949, P. LL. 30, the Board of Public Education of Philadelphia (hereinafter called the Board), charged Haas with incompeteney and persistent and wilful violation of the school laws of the Commonwealth. The reeord. reveals that on June 26, 1952, appellant, during an interview with Dr. Louis P. Hoyer, Superin- tendent of Schools, refused to-answer certain questions as to his loyalty. Haas stated that he wished to consult coun- sel. At a second mecting, on October 14, 1952, appellant, having consulted counsel, again refused to answer questions relating to loyalty. He had taken the Loyalty Oath,’ and his position was that this oath ‘‘took care of everything before that time.’’ Appellant further stated that ‘the did not propose to have here what happened in Germany.’ 1The Act of December 22, 1951, PLL. 1726, 65 PLS Section 211 et seq Hlaas Opinion (Nape r. of Publi Tust.) Za Thereafter, in November, 1953, a sub-committee of the louse Committee on Un-American Activities anet in Phila- elphia for the purpose of inv estigating communist aeiivi- ex in that city. Appettapi, in res poise to it subper tat, ap- eared before the sub enim tee on Nevember Ps, tos, Ie stated that at that time he was net a member of the ‘onpuunist Party. Howeter, when asked whether he hae ver been a member, he refused to answer on the ground of he Fifth Amendment to the Constitution of the United tates. The appell int was asked other questions by counsel or the sub-committee, relating to meribership in the party nd various communist front organ izations, as well at at- endanee at meetings and picket Hines. Tn each instance, laas invoked the Fifth Amendment. 4 On the basis of Hacts* refusal to answer questions relat- ny to loyalty asked by Dr. Hoyer on dune: Ye, 192 and Oeto- ver 14, 7952, and his refusal to an wer questions dealing - vith lovalty before the sub-committee apon recommendation vy Dr. Hover, the Board, on November 24, 1953, preferred he charges against Haas to which reference has heretofore wen made, Appellant received a statement of the charges, ind on December 19, 1053, he was given a hearing before the Board. Thereafter, the Board found that the charges had wen proved and, on January 7, 1854, Selomen Haas was lismissed. This appeal followed. The important question presented for our determina ion is whether appellant's refusals, on the three occasions nentioned, t6 answer questions relating te loyalty, canst ute incompeterey and persistent and wilful viel: ion of the school laws. "TRie, of course, Invely es a cons sideration of the authority of Dr. Hoyer. ta ‘ask the questions, and the effect of invoking the Fifth Amendment before a sub-committee of the Congress of the United States, It. was settled in Pefinsylvania ‘by the case of Abert Appeal, 372 Pa. 15 (1952), that a communist or any person who advocates or pRUrLICLp ait es in subversive doctrines ean- net teach in the. public school system. Mr. € hief Justice ° Ra ~ Haas Opinion (Super. of Public Inst.) Stern, speaking’ for the Supreme Court, there said, a page 19; - . . **. . : In short, it is essential, in order to protec our children from treacherous influences, that person who advocate .or participate in subversive doctrine, should not be employed, or if employed should not |: retained, as teachers: in our publie schools, and any teacher dismissed for such a reason cannot ‘proper| claim that any constitutional or legal right is therety violated.”’ See dso, the Act of December 21, 1951, P. L. 1712, 18 P.S Section 3811, ; ’ | To carry out the mandate of Article 10, Section 1 of the PonnsyIvania Coristitution that there be maintained » ‘thorough and efficient system of public schools,"? the ap pointment of superintendents is provided for in the public school system. The duties of such individuals include the determination of the fitness of the professional employes. See Section 1125 of ‘the Public School Code ‘of 1949, as amended by the Act of August 10, 1991, P. L. 1157, Seetion 1, 24 P.S. Seetion 11-1123 (P. P.). As soon as Dr. Hover, as District Superintendent, came inty possession of information concerning the loyalty of ap- pellant, it was in our judgment his right, indeed, tis solemn duty to inquire of appellant as to the truth or falsity of this information. Beeause of the important nature of this in formation, Dr. Hover chose to make the necessary inquiry himself. If appellant had cooperated and it was determine! the information was false, it: would then have been Dr. Hoyer’s duty to protéet this teacher from false accusation. Appellant, however, refused. to cooperate and instead be- came insubordinate in that ‘‘he did not propose to have here: What happened in Germany.”? . The fact that appellant took the Loyalty Oath in no way insulates him from inquiry relative to ‘past conduct. Dy. Hoyer apparently possessed information relating to past Haas Opinion (Super, ef Public Insti Ya subversive activity or agsociation with subversive organiza- tions by appellant. Assuming that such information was true, and assuniing further that appellant's participation in subversive activities continued at least until the day of the oath, it is obvious that the inquiry as to past activity and association is relevant to determine if the activity or asso- ciation has stopped and, if so, when and under what ‘cir- cumstances, The Supreme Court of the United States, ima similar situation, has said: “We think that a municipal employer is not dis- abled beeause it is an agency of the State from: inquir- ing of its employees as to matters that may prove relevant to’ their fitness and suitability: for the public service, Past conduct may well relate to present. fit- ness: past doyalty may have a reasonable relationship to present and future trast. Both are commonly in- quired into in determining fitness for beth high ayd low positions in private industry and are not less relevant in public employment, (Garner v. Board. of Public Works of Los Angeles, O41 US. 716 (T90T)) a4 Tt has been held repeated|y that the term ‘tincom- peteney,’? as used in the Publie School Code, ix not Limited to classroom performance alone: Heroshke oe. Mf, Phew aut Tiep. School District ef al. O35 Pa. 300; Brow "s Case, 101 Pa. Superior Ct. S22: and West Mahanew Tip. School Dist, ty Aelly, 156 Pa, Superior Ct, 601, It is our opinion that the settled contempt of Solomon Haas for the authority of the, Superintendent of Schools seriously refleets upon his qualifications as a teacher. We, folly agree with the sentiments of Dr. Hoyer contained in the testimony before the Board ,of Public Education as a reason for the unsatisfactory rating given to Haas: ~The question of competeney of a teacher has . many implications. Of course, there is the question of %* 10a Haas Opinion (Super. of. Public Inst.): his technical skill in handling-the work in the classroom. But there are a great many other matters that have to deal with personality, character, that are as lmportant in some respeets, 1 think even more important, than technical skill on the part of a teacher. ‘*T felt that in this instance Mr. Haas did net sho the -frankness, the candor, the kind of intellectual honesty that I think a teacher is bound to show in con- nection with his work. This Was true on both oceasion~ when he came into my office. . The influence of a teacher in ‘the classroom is per haps greatest through the foree of hiv exar lative purpose, that the members of the Committee were using the hearings for pnrposes of personal political ag- erandisement, that the Committee had no right to inquir into her associations and beliefs, and that her freedoni~ ef speech and association guaranteed by the First Amendment would be violated if she were eompelled to answer the Cor cnittes's questions. Both Mrs. Watson and Dr. Hover testi fied that she had speken frankly to him in his office i October of 1952 concerning her ioyalty and her membershy 1a hamber of organizations and that, at the eonclusion @! Watson Opinion (Pal, Supreme Ch) : tila the interview, Dr. Hover had told her that he was satisfied that she had afiswered all of his questions satisfactorily. On June 29, 1954, the Board dismissed Mrs. AVatson from her position as a teacher on the charge of incompe teney for her failire to answer questions of the Comunittee, She appealed from the action of the Board to the Superin tendent of Publie Instruction of the Commonwealth who, on January 17, 1955, dismissed her appeat and affirmed the action of the Board. Mes. Watson then appealed to the Court of Common Pleas of Philadelphia County from the Superintendent's order affirming, her dis missal. The court dismissed her ap peal ane Affirmed the order of the Superintendent of Public Instruction citing as the basis for its action the yeasons set forth in its opinion in Board of Public Belucatrou, Soho District of Philadelphia v. Atkinson, Phila, ©. BL Neo 3, December: Perm it, Na Sots. The reasons so nsstomed: in the Affiwser case Were (1) that a refusal te answer ques tions propounded by the, Congressional Cotmittee relating to alleged) Communist affiliations of the “witness renders # teacher asia eve within the intent of the frie | School Code. and (2) that a discharge on the roid of i competency for refusal to answer the Committee's que Hee does not Violate a teacher's vights under the Federal Con- stitution, 5 So far as the groynd assigned for Mrs. Wi Atson's dis nissalas a public school teacher and the procedure by Which it was effected are concerned, this ease is not one bit dit- ferent from the Jatille, Deacow and Athinson cases, cit. supra, in which we have this day harndedk Lowa an opinion ; sustaining the appellant teache ee contention and ordering — their reinstatement to the posjtions~ from wich they were stispemded ame Liter dismissed, ; Bven uf Mrs. Wathen ’s plese’ of the Parsi: Aime neboent mats, nel eee placed tef, Bareublatt , 2, ted States, ABO EOS. 109). Per refusal te answer thee ¢ ‘ommitter. ~ tphie stots did net render her incompetent as a public school teacher, 42a Watson Opinion (Pa. Supreme Ct.) Justas inthe Jutille, Deacon and Atkinson cases, here, also, the appellant did not refuse fo answer any question of her admnistretive superior (Dr. Heyer) and her employer Beard did not ask her any. All that was produced at the hearine before the Board to support the charge of ineom. pefenes avainst the appellant was a transcript of the record of her appearance before the Committee when she refused fo answer certain questions ona plea of constitutional riga' - under the First’ Amendment so to de. Uf the priviles+ ‘laimed as not legally available.to the witness in the cir cumstances, that fact wonld not serve to prove her enilty # of the ehttree of incompeteney in her pesition as a Penn- ne And then the Majority absolutely ignores the strony language of the Supreme Court in that same Barneblatt case where it seid: **That Congress has wide power to legislate in the field of Communist activity in this Country and f conduct appropricte investigations in aid thereof, is hardly debatable... In the last analysis this power rests on the right of self-preservation, ‘the ultimate ralue of any. so- ety." Me fa . } é 3 The decision of this Court, if carried to-its logical con- clusion, would deny the School Distriet of Philadelphia the right of self-preservation, for how ean any school system survive if it is required to hire and retain school teachers who are disrespectful of the government in word and deed? Now. Mrs. Watson was a Communist or she was not a Communist. No one ean honestly deny the fairness and veeuracy of that statement. Yet, although there was de- finitely before the Congressional Committee sworn. testl- Watson Dissenting Opinion (Pa. Supreme Ct.) * 51a mony by a Mrs: Dorothy Funn that she had known Mrs. Watson as a member of the Communist Party, Mrs. Watson refused to deny this accusat.on. In other words, in the face of a direct charge that she be longed to an organization com. mitted to the destruction of our government by force amd violence, an organization committed: to destruction of ‘the Philadelphia schools, an organization commitfed to a de- struction of faith in a Supreme Being, she refused to deny the aceusation. , . And her refusal to answer was not based on any theor y that she feared eriminal prosecution. Her refusal to answer was based.on the gargantuan presumption that she was ereater than the Congressional Committee and that they did not dare question her about her associations and metnber- ‘ships. Although our government is based upon the proposi- tion that everybody is amenable to the processes of hoy, Mrs. Watson insisted that Congress itself, representing the law, had no right to question her. And this Court supports her in this unmitigated demonstration of eonceit and. self: assumed superiority. : Professor Wigmore, in his monumental work on Evi- dence, has said: ‘*For more than. three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned . Lord Hardwieke) has a right to every man’s evidence... This contribution is nat to he regarded as a gratuity, or a courtesy, or an ilrequited favor. It is a duty, not to be grndged or év: aded. Whoever is impelled to evade or to resent it should retive from the society of organized and civilized communitiys, and become «hermit. He who will live by society must let society live by him, when it requires to. OF rom the point of view of society’s right to our testi- mony, it is to be remembered that the demand comes, not from any one person or set of persons, but from: the eom- munity as a whole,—from justice as an institution, and from law and order as indispensable elements of civilize “dl _—"oE = 7 cident she had Witnessed, | INUSt repes and incompetent to be a teacher of the 02a Watson Diss, Nting Opinion (Py. Supreme Ct.) Hfe . ) .* . Wigmore on Evidence, Vol VIIT, See. 2199. A person who Withesses, even involuntarily, the h ing of an accident or the commission of boenacd as a witness to testify as to what he knows of the accident or crime, may not excuse himself from testif'ving by qestioning the-motiyes of the court. pt. may not be excused from testifving for any reason, except that of pos. sible self-inerimination for crime, which M cluded from her reasons ‘for not testif'ving, appen- rs. Watson ex. As a member of society, 4 Witne tell what he knows ‘for the protection and preservation of that. society, and for Upholding the Concept OF justice, Tp has that duty as mueh as passenger aboard a stricken ship Is required to ail In seeking to keep her affo the ship and. all the passengers, sinking. Mrs. Watson had noamére right to refuse to answer, the questions put to her by the Congressional ( ‘ommmittee than she would have had the right to refuse to testify to ‘an ac | it that since she did not invoke the Fifth Amendment, her refusal to answer Was a demonstration of disobedience to constituted “uthority, which disobedience, jy, itself, proved her utterly unworthy | children of Philadel. phia, who want Instruction on ood citizenship, by way of example, from their teachers, Mrs. Watson ‘s Complete ss has the obligation to at, sa us to save including himself, from destitution of sincerity. and utter lack of oral ciyje responsibility: is irbefutanty estab. lished in the following. She Was asked hy the chairman Of the committee: ‘Did You take the lovalty oath?" Defiantly she replied: +*] Will not answer that question.’ Now, why Wouldn't she answer that question?’ She cither too the loyalty oath or she did not. Hep refus Was sheer Insolence, tothing else, would have subjected her to ch al to answer and, in a court of law, arges of contempt Instanter, Later on,‘she conferred with her Counse!] and then said: “Itisa matter of public record that I took the loyalty oath." aerime and is sub. - © Watson Dissenting Opinion (Pa, Supreme Ct.) Aa And Here comes the erueial feature of her INSiNceTity, purposeful irresponsibility, and demonstrated lack of eom- petence to be a school teacher or to hold any offiee requiring caudor, consideration and reliability. The chairman asked her: ‘Now, at the time you took the lovalty oath were you atmember of the Communist Party?" Mrs. Watson replied; “TL refuse to answer the question.on the basis of the First Amendment.”’ Now, if Mrs. Watson was a member of the Communist Party when she took the loyalty oath, she committed out. right perjury. If she was not a member of the Communist Party when she took the oath, her refusal to answer so simple and so vital a question revealed her as being coin- feniptuous to the ultimate. degree. Why shouldn't she an- an intimate personal knowledge of a criminal enterprise. In Mrs. Watson’s concept of government, testifving before a Congressional Committee makes one ai ‘stool pigeon.”* No one was asking her to tell lies before the Com- -mittee. Thus, if she told the truth, aceording to her own statement, this would make her a stool pigeon. Did she mean by this statement that she would thus be informing on fellow-Communists? Mrs. Watson's language of defianee was even stronger than thus far quoted. She said: ‘*When I walked into that room | knew that no power, no power on God’s earth could Watson Dissenting Opinion (Pa. Npre rite (‘t.) re ae make ane become a part of something that I thought was wrong,”’ oan She thought it was so wrong td testify before a Con- rressional committee that ‘tno power on God's earth’? could compel-her fo do it. And yet, every day hundreds of exeed- ent citizens appear before House and Senate committees to” estify on facts, plans, statistics, observations——allk to: help “ongress in formulating legislation for the welfare of the’ ‘ountry. Our Government simply could not operate without he information which Congressional committees obtain from vithesses: experts, technical consultants, educators, and so m. . But Mrs. Watson regarded testifying before a com- nittee, pequired by an Aet of Congress to obtain informiat- ion peeuliarly within her knowledge and the obtaining of vhich would help preserve) American freedoms, as some- hinge disgraceful. In speaking of her unbridled defiance of he Commmittee she exclaimed :** Democracy is running down he drain.”* !!! And this is the kind of person that this Court practically, wstows an accolade upon by officially approving -her arro- rant and disrespectful behavior before a “Congressional ‘ommittee and her superiors, the School Board éf Phila- lelphia. | : Tam firmly convineed that a reflective reading of the ecord in this ease will prove conclusively that Mrs. Watson acks the stability of character, the respect of authority, the learness of judgment, and- Nie attachment to ideals of \merican citizenship, to be a good teacher in the American chools. On the basis of her performances before the Con- ressional Committee and the School Board, the School Soard would have been grossly derelict in its responsibilities o the people of Philadelphia if it had not dismissed her. fere is a school teacher who, although supposed to be the: ery personifieation of American ideals, defies Congress, in- ults the School Board, berates democracy, tannts officials o8a - Watson Dissenting Opinion (Pa. Supreme Ct.) and workers in American government, refuses to give testi- D mony that would help this government to fight its mortal enemy in a war of survival, suggests to her pupils that it is desirable not to cooperate with a branch of the United States Ro Government—does all this in an arrogant, contemptuous, de- v risive, insolent, rude, scorning manner--and then, SIX years if later, she is restored to the pgsition she has tarnished by os her conduct. By that action Congress is rebuffed, the Schoo! ‘val Board is condemned, the Superintendent of Schools is hu- ie miliated, and, in ‘addition, the person responsible for tliis eS utterly incredulous situation, may make claim for wages tin unpaid during the time of her swspension. This is indew! a ineredulous and baffling to the law, as well as to the tax- . are payers. it] I am in total accord with my brother Eacen who says: ; ‘*T emphatically dissent !’’. the : of : “(0 ° ; ; tio $ be ‘ loy . the . : CO) de : ter tee me pr "wt ; ms mi , sh s an SiC : aie ras pe ! f ‘ , mi meat Watson Dissenting Opinion (Pa. Supreme Ct.) 59a ISSENTING OPINION BY MR. JUSTICE EAGEN: I emphatically dissent! I agree with the legal correctness of Slochower +. The rd of Higher Education of the City of New York, 350 S. 549 (1956), but the facts herein are not comparable. 1 school board, because of a provision in a eity charter, ‘e compelled to summarily dismiss any employee, who used to testify or answer before a congressional commit- and was consequently thereby denied the right to exer- ‘its sound discretion with respect to the employee ’s con- 1ed employment even though it was determined he or she : completely competent, of course that would he wreng | legally unjustified. That was the Slochower case, but < not the ease of Goldie Watson. An examination of the record (the notice of suspension ; statement of charges; the testimony before the members the sub-committee of the House Un-American Activitics nmittee; and, the testimony before the Board of Fduca- 1) elearly discloses that Mrs. Watson was not dismissed ause of her failure to answer questions bearing on her alty, but rather was it beeause of. what she did say and manner in which she said it that jastifiably Jed to the clusion bythe Superintendent, of Schools that her meanor bordered on insolence and disclosed incompe- cy in unmistakable terms. This is not a ease of a schoo] cher suffering dismissal or being declared incompetent rely because she saw fit to exercise her constitutional Vileges of refusing to answer. No, this is a situation erein her public: employer, after a. full hearing, deter- ned that she was unfit to teach in. the community beeause clearly evidenced a settled contempt, a blatant disrespect Jan arrogant disregard for a duly constituted eongres- nal committee and the important. functions if sought to ‘form. ; ; : Let us see how these unfortunate traits of attitude are nifested by the minutes of the sub-committee. She was 60a Watson Dissenting Opinion (Pa. Supreme Ct.) asked ten questions. She gave responsive answers to three: Her name, address, and a brief résumé of her schooling and edaeational background. . When asked if she had ever been a member of the Communist Party,. she replied: ‘*Mr. Kunzig, I ask: your first questions to be completely identified before this committee. I will not answer any other question I am asked about membership in organizations, associations, socicties, people I have met with, or anything else.” When advised by the sub-committee of her rights under the Fifth Amendment, she declined to invoke it. In reply té the same question asked again, she said: ‘*I said I would not answer the question, and that it is a violation of my Constitutional rights for you to bring me here and attempt to compel me to answer questions about associations, memberships, con- ‘ferences, or speeches.’’ (Note: ‘‘eonferences’”? and ‘*speeches,’’ both volunteered). Not having availed herself of the privilege against self-incrimination, she was directed ’ to answer and she countered: ‘I refuse to answer on the basis of my first statement.’’ Next question-—‘‘ Mr. Kunzig: Did you ever attend a Communist school or a school ‘for instruction of Communist teachers in New York State? Mrs. Watson: Mr. Kunzig, I have intimated that Tam not qoina fo answer your questions. "When directed to an- swer, she said: ‘‘T will not answer”? . . 2 1 refuse to an- swer,’’' These questions and answers are, in ‘the minutes, interspersed with repeated references ‘to the fact that the witness was, during it all, constantly consulting with her counsel. Finally, she ‘‘took the First.””) ‘Mr. Kunzig: Have you ever aftended any Communist instruction school at any place? Mrs. Watson: Mr. Kunzig, I refuse to an-.. ,swer, specifically on the basis of my rights as guarantecd "by the First Amendment:to the Constitution. . . . I refuse to answer on-the basis of the First Amendment.’’ Mr. Kunzig then asked that ‘‘the record show that in voice and tone the witness has emphasized the use of the words ‘First Amendment.’ ”’ 1. Emphasis throughout supplied. mitt to te her ques cont shed and take saer tak® ques reco mitt son hoa that min und _to t is si the that vesi ing! Am to | spe as ( twe des the abe rig tha Sh o Watson Dissenting Opinion (Pa. Supreme (‘t.) Gla Later in the proeeedings she is thusly advised by a eom- ee member: ** Mr. Scherer: Of course, 4 think it is fair ‘ll the witness—evidently, she already has been told by counsel—that the manner in awhich you answered the tions this morning clearly indicates that you are’ in empt of the Congress”? After consulting with counsel, replied: *T have been advised by my counsel of the risks ‘the dangers that T run by taking this position. [still the risks and the dangers beeause this position is very od to me.’ Following which, when asked if she had fn the loyalty eath, she said: ‘tT will not answer that stion.’?* (She later stated that it was a matier of public wd that she had taken it.) ry | That's Goldie Watson ‘as she was .before: the