Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-10-07
OPINION BY MCNAMARA
Action Of Board of Education
Is Held to Be Legal.
DlSMISSALS OF TEACHERS
Right to Discharge an Employe With
out Trial.
SUPREME GOVERNING POWER
Control Of the Schools-Dissatisfac
ton With Procedure - Must
Guard Welfare Of Students.

Guard Welfare Of Students.
Mrs. A. J. Cooper. John L. Love and
James B. Clark. the three colored school
employees who were dismissed summarily
by the board Of education recently, intend.
it is understood. to test their claims for re-
instatemeat in the courts IL the possibility
is offered. Therefore, the opinion Of Attor-
ney Mcnamara on the question Of their dis
missals is regarded as Of only passing in
terest. The opinion. however, as 1t upholds
the action of the board. is considered as
adding much to the feeling on the part OF
the members OF the board that they were
within their legal rights.
The full text Of Mr. McNamara's opin-
ion as follows:
You have referred to me the petitions OF
Mrs. A. ]. Cooper and Messrs. John L. Love
and James B. Clark, wherein the petitioners
protest against their dismissals from the
schools Of the District. Of which they &C
knowledge notice. by orders Of your board
dated the 18th ult. The notification Is set
out in the petitions that at a recent meet
ing Of the board, upon the recommendation
of the superintendent. you are. dismissed
from the public schools Of the District OF
Columbia for the good of the service
Teachers Statements. :
Mrs. Cooper AYERS that at the date afofe-
said she was principal Of the N Street
High School, and had been such since 1901,
and contends that she now holds the posi-
ton by legal right, and that the board IL
without power to thus summartly eject her
from it. and that the action Of the board
is a great legal wrong. MI. Clark and Mr. Mr.
Love represent that at the time OF the
action Of the board they were. respectively
supervising principal Of the tenth division,
and a teacher in the M Street High School.
moved from the service Of the public schools
without charge or trial other than the
vague statement. for good OF the service.
but are protected In the enjoyment OF their
sort Of existing law analogous to the prin-
ciples Of the merit system or civil service
law What peculiar branch OF law this Is
the petitions omit to cite. All three peu-
to their knowledge or. II made, could not
be sustained. The boaa1 Is urged to rescand
Its action in the premises which the peei.
TONERS thus conceive to be without warrant
OF law.
Grounds for Dismtssa1A
Nothing In this reference indicates that
any technical charges were preferred
against these petitioners. and 1t Is adnafted
that no trial was had. The only state
ment made by the board II that the Dis
missals were ordered pursuant to tho
recommendation Of the superintendent be-
cause deemed necessary for the good OF the
service Tho only question raised Tor me
to consider is the power Of the board IN
this behalf Has. then. the board. when
acting upon the recommendation OF the su-
perintendent. and when actuatsd by It's ana
his Joint conception OF the highest interests
and good Of the school system, the power.
~r,o
without first affording him a trial ana OPP
portunity to be heard?
THE board of education ts the supreme
governing power OF the schools All inter
medtary authority 10 pyramfdal to this apex
Of command. Section Of the act Of June
schools in tho board, and by tho same sec
ton 1t Is further provided that the board
shall determine all questions OF general
policy relating to the schools. II Ia granted
tho power to appoint the directors, super
vising principals. principals. heads Of de-
partments, teachers and other employees.
and all such are IN its employ. Has 1t the
power to dismiss those whom 1t thus en-
ploys? Although no express power should
be given, it would enjoy the implied power
to dismiss any OF those whom It had the
authority to employ.
Powers Defined.
Where there Is no reference to the SUBJ
ject, the power to dismiss Is commensurate
with the power to appoint. AS said by the
Supreme Court Of the United States. in
the absence OF specific provision to the con-
trary, the power OF removal from ONCE is
incident to the power of appointment
(Keim v. U. s., 1T U. s.. 290; in re Hennen.
10 Pet. go: Parsons V. U. s.. 1877 U. g.. 324:
People v. Robb, 126 N. 7. 800:
I'm the act of June 20, 1905. creating
hoo ri ia
powers and duties. the only reference to the
subject Of dismissal Is to be found IN Sec
ton two. 1t is provided therein that: No
appointment, promotion, transfer or dis
missal of any director. ETC.. or any other
subordinate to the superintendent of schools.
shall be made by the board Of education
except upon the written recommendation of
the superintendent of schools.
Further on the same section announces
the methods in which the appointments
shall be made by these two agencies. A
similar direction is also contained In Sec
ton as to the mode to be followed by
the superintendent and board in the matter
Of promotions. But with regard to dismiss
sails the section is silent as to procedure,
and has no utterance other than that the
board shall not dismiss except upon the
written recommendation OF the superin-
tendent.
May Be Removed for Cause.
"The superintendent himself, the act pro-
vides In section 8, may be removed by the
board at any time for adequate cause
affecting his character and efficiency as
superintendent, but when any one under
him is concerned the law requires his con-
currence before the board may order a dis
missal. 1t will thus be seen that the act
has expressly prescribed the written
Recommendation of the superintendent as q
condition both precedent and sufficient to
dismissals by the board. The board Is not
compelled to accept his recommendation
and act upon It. but 1t cannot act without
IT, Under the act of June 6, 1900. under
which the former board was organized.
power was granted to the board to dismiss
on Its own motion. The present act obvi-
ously curtails such previous power by re-
curing the concurrence Of the superin-
tendent. But when this concurrence IL
present the power to dismiss becomes COM
plete. The law as such has been affirmed
elsewhere under similar states of facts.
people agt. Hyde. 80 N. T., IL; In re Cheese.
so Super. CT. N. T.. 473).