# Beilan v. Board of Public Education, School District of Philadelphia/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinions Warren Douglas Brennan
United States Supreme Court
357 U.S. 399
Beilan v. Board of Public Education, School District of Philadelphia
Argued: March 4, 1958. --- Decided: June 30, 1958
The question before us is whether the Board of Public Education for the School District of Philadelphia, Pennsylvania, violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States when the Board, purporting to act under the Pennsylvania Public School Code, discharged a public school teacher on the ground of 'incompetency,' evidenced by the teacher's refusal of his Superintendent's request to confirm or refute information as to the teacher's loyalty and his activities in certain allegedly subversive organizations. For the reasons hereafter stated, we hold that it did not.
On June 25, 1952, Herman A. Beilan, the petitioner, who had been a teacher for about 22 years in the Philadelphia Public School System, presented himself at his Superintendent's office in response to the latter's request. The Superintendent said he had information which reflected adversely on petitioner's loyalty and he wanted to determine its truth or falsity. In response to petitioner's suggestion that the Superintendent do the questioning, the latter said he would ask one question and petitioner could then determine whether he would answer it and others of that type. The Superintendent, accordingly, asked petitioner whether or not he had been the Press Director of the Professional Section of the Communist Political Association in 1944. Petitioner asked permission to consult counsel before answering and the Superintendent granted his request.
On October 14, 1952, in response to a similar request, petitioner again presented himself at the Superintendent's office. Petitioner stated that he had consulted counsel and that he declined to answer the question as to his activities in 1944. He announced he would also decline to answer any other 'questions similar to it,' 'questions of this type,' or 'questions about political and religious beliefs * * *.' The Superintendent warned petitioner that this 'was a very serious and a very important matter and that failure to answer the questions might lead to his dismissal.' The Superintendent made it clear that he was investigating 'a real question of fitness for (petitioner) to be a teacher or to continue in the teaching work.' These interviews were given no publicity and were attended only by petitioner, his Superintendent and the Assistant Solicitor of the Board.
On November 25, 1953, the Board instituted dismissal proceedings against petitioner under § 1127 of the Pennsylvania Public School Code of 1949. The only specification which we need consider charged that petitioner's refusal to answer his Superintendent's questions constituted 'incompetency' under § 1122 of that Code. The Board conducted a formal hearing on the charge. Petitioner was present with counsel but did not testify. Counsel for each side agreed that petitioner's loyalty was not in issue, and that evidence as to his disloyalty would be irrelevant. On January 7, 1954, the Board found that the charge of incompetency had been sustained and, by a vote of fourteen to one, discharged petitioner from his employment as a teacher.
On an administrative appeal, the Superintendent of Public Instruction of Pennsylvania sustained the local Board. However, on petitioner's appeal to the County Court of Common Pleas, that court set aside petitioner's discharge and held that the Board should have followed the procedure specified by the Pennsylvania Loyalty Act, rather than the Public School Code. Finally, on the Board's appeal, the Supreme Court of Pennsylvania, with two justices dissenting, reversed the Court of Common Pleas and reinstated petitioner's discharge. 386 Pa. 82, 98, 110, 125 A.2d 327, 334, 340. We granted certiorari. 353 U.S. 964, 77 S.Ct. 1047, 1 L.Ed.2d 913.
In addition to the Public School Code, Pennsylvania has a comprehensive Loyalty Act which provides for the discharge of public employees on grounds of disloyalty or subversive conduct. Purdon's Pa.Stat.Ann., 1941 (Cum.Ann.Pocket Pt., 1957), Tit. 65, §§ 211-225. Petitioner stresses the fact that the question asked of him by his Superintendent related to his loyalty. He contends that he was discharged for suspected disloyalty and that his discharge is invalid because of failure to follow the Loyalty Act procedure. However, the Pennsylvania Supreme Court held that the Board was not limited to proceeding under the Loyalty Act, even though the questions asked of petitioner related to his loyalty. We are bound by the interpretation thus given to the Pennsylvania statutes by the Supreme Court of Pennsylvania. Barsky v. Board of Regents, 347 U.S. 442, 448, 74 S.Ct. 650, 653, 98 L.Ed. 829; Chicago, M., St. P. & P.R. Co. v. Risty, 276 U.S. 567, 570, 48 S.Ct. 396, 397, 72 L.Ed. 703. The only question before us is whether the Federal Constitution prohibits petitioner's discharge for statutory 'incompetency' based on his refusal to answer the Superintendent's questions.
By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.
'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted.' Adler v. Board of Education, 342 U.S. 485, 493, 72 S.Ct. 380, 385, 96 L.Ed. 517.
As this Court stated in Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, 'We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service.'
The question asked of petitioner by his Superintendent was relevant to the issue of petitioner's fitness and suitability to serve as a teacher. Petitioner is not in a position to challenge his dismissal merely because of the remoteness in time of the 1944 activities. It was apparent from the circumstances of the two interviews that the Superintendent had other questions to ask. Petitioner's refusal to answer was not based on the remoteness of his 1944 activities. He made it clear that he would not answer any question of the same type as the one asked. Petitioner blocked from the beginning any inquiry into his Communist activities, however relevant to his present loyalty. The Board based its dismissal upon petitioner's refusal to answer any inquiry about his relevant activities-not upon those activities themselves. It took care to charge petitioner with incompetency, and not with disloyalty. It found him insubordinate and lacking in frankness and candor-it made no finding as to his loyalty.
We find no requirement in the Federal Constitution that a teacher's classroom conduct be the sole basis for determining his fitness. Fitness for teaching depends on a broad range of factors. The Pennsylvania tenure provision specifies several disqualifying grounds, including immorality, intemperance, cruelty, mental derangement and persistent and willful violation of the school laws, as well as 'incompetency.' However, the Pennsylvania statute, unlike those of many other States, contains no catch-all phrase, such as 'conduct unbecoming a teacher,' to cover disqualifying conduct not included within the more specific provisions. Consequently, the Pennsylvania courts have given 'incompetency' a broad interpretation. This was made clear in Horosko v. Mt. Pleasant School District, 335 Pa. 369, 371, 374 375, 6 A.2d 866, 868, 869-870:
'If the fact be that she 'now commands neither the respect nor the good will of the community' and if the record shows that effect to be the result of her conduct within the clause quoted, it will be conclusive evidence of incompetency. It has always been the recognized duty of the teacher to conduct himself in such way as to command the respect and good will of the community, though one result of the choice of a teacher's vocation may be to deprive him of the same freedom of action enjoyed by persons in other vocations. Educators have always regarded the example set by the teacher as of great importance * * *.
'The term 'incompetency' has a 'common and approved usage'. The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C.J., with reference to a number of supporting decisions, it is defined: 'A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty.' In Black's Law Dictionary, 3rd edition, page 945, and in 1 Bouv.Law Dict., Rawle's Third Revision, p. 1528, it is defined as 'Lack of ability or fitness to discharge the required duty.' Cases construing the word to the same effect are found in 4 Words and Phrases, First Series, page 3510, and 2 Words and Phrases, Second Series, page 1013. Webster's New International Dictionary defines it as 'want of physical, intellectual, or moral ability; insufficiency; inadequacy; specif., want of legal qualifications or fitness.' Funk & Wagnalls Standard Dictionary defines it as 'General lack of capacity of fitness, or lack of the special qualities required for a particular purpose." In the Horosko case, a teacher was discharged for 'incompetency' because of her afterhours activity in her husband's beer garden, serving as a bartender and waitress, occasionally drinking beer, shaking dice with the customers for drinks and playing the pinball machine. Cf. Schwer's Appeal, 36 Pa.Dist. & Co. R. 531, 536.
In the instant case, the Pennsylvania Supreme Court has held that 'incompetency' includes petitioner's 'deliberate and insubordinate refusal to answer the questions of his administrative superior in a vitally important matter pertaining to his fitness.' 386 Pa. at page 91, 125 A.2d at page 331. This interpretation is not inconsistent with the Federal Constitution.
Petitioner complains that he was denied due process because he was not sufficiently warned of the consequences of his refusal to answer his Superintendent. The record, however, shows that the Superintendent, in his second interview, specifically warned petitioner that his refusal to answer 'was a very serious and a very important matter and that failure to answer the questions might lead to his dismissal.' That was sufficient warning to petitioner that his refusal to answer might jeopardize his employment. Furthermore, at petitioner's request, his Superintendent gave him ample opportunity to consult counsel. There was no element of surprise.
Our recent decisions in Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, are distinguishable. In each we envisioned and distinguished the situation now before us. In the Slochower case, 350 U.S. at page 558, 76 S.Ct. at page 641, the Court said:
'It is 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 occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or * * * official conduct of city employees.' In this respect the present case differs materially from Garner (Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317), where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.'
In the Konigsberg case, supra, 353 U.S. at pages 259-261, 77 S.Ct. at pages 726-727, this Court stressed the fact that the action of the State was not based on the mere refusal to answer relevant questions-rather, it was based on inferences impermissibly drawn from the refusal. In the instant case, no inferences at all were drawn from petitioner's refusal to answer. The Pennsylvania Supreme Court merely equated refusal to answer the employing Board's relevant questions with statutory 'incompetency.'
Inasmuch as petitioner's dismissal did not violate the Federal Constitution, the judgment of the Supreme Court of Pennsylvania is affirmed.
Affirmed.
For concurring opinion of Mr. Justice FRANKFURTER, see 357 U.S. 399, 78 S.Ct. 1324.
For dissenting opinion of Mr. Chief Justice WARREN, see 357 U.S. 411, 78 S.Ct. 1325.
For dissenting opinion of Mr. Justice DOUGLAS with whom Mr. Justice BLACK concurs, see 357 U.S. 411, 78 S.Ct. 1325.
For dissenting opinion of Mr. Justice BRENNAN, see 357 U.S. 417, 78 S.Ct. 1328.

## Notes

* ↑ The Communist Political Association was the predecessor organization of the Communist Party of the United States. See Yates v. United States, 354 U.S. 298, 304, note 5, 77 S.Ct. 1064, 1069, 1 L.Ed.2d 1356.
* ↑ Pa.Laws 1949, No. 14, Purdon's Pa.Stat.Ann., 1950, Tit. 24, § 11-1127.
* ↑ Petitioner's refusal to answer his Superintendent was also charged as persistent and willful violation of the school laws, another statutory ground for dismissal. See note 4, infra.
* ↑ Section 1122 of that Code, in 1952 and 1953, provided that 'The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, * * * persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe.' (Emphasis supplied.) Pa.Laws 1949, No. 14, as amended, Pa.Laws 1951, No. 463, § 16; Purdon's Pa.Stat.Ann., 1950 (Cum.Ann.Pocket Pt., 1957), Tit. 24, § 11-1122.
* ↑ Counsel for the Board, at the outset of the hearing, stated:
* ↑ There is no showing that the statute was discriminatorily applied. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.
* ↑ See note 4, supra.
* ↑ E.g., Baldwin's Ky.Rev.Stat.Ann., 1955, § 161.790(1), 'conduct unbecoming a teacher,' 'during good behavior.' Mass.Ann.Laws, 1953 (Cum.Supp., 1957), c. 71, § 42, 'conduct unbecoming a teacher,' 'or other good cause.' West's Ann.Cal.Code, Education, § 13521(a), (e), 'unprofessional conduct,' 'Evident unfitness for service.' Smith-Hurd's Ill.Ann.Stat., 1946 (Cum.Ann.Pocket Pt., 1957), c. 122, § 6-36, S.H.A., 'other sufficient cause.' Burns' Ind.Ann.Stat., 1948 Replacement Vol., § 28-4308, 'other good and just cause.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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