Earl Warren: Herman A. Beilan, Petitioner, versus Board School District of Philadelphia. Mr. Carroll, you may proceed.
John Rogers Carroll: Thank you, Your Honor. The Court please. This case arises on certiorari to the Supreme Court of Pennsylvania. The issue involved is whether a school teacher, public school teacher, maybe dismissed from his job on the ground of the incompetency without a hearing on his competency simply because he refused to answer a question relating to past Communist affiliations. The question in this case, unlike others Your Honors have had, was not asked formally in the form of a note or before a congressional committee but informally by his administrative superior, the Superintendent of schools. The facts which gave rise to this situation are briefly these. Petitioner was appointed a public teacher in Philadelphia on February 17th, 1930. For 23 years thereafter, he continued to teach school and was continually rated competent in accordance with the official rating system. In May -- pardon me -- June of 1952, he received the summons from his Superintendent, the District Superintendent Schools to appear at the Superintendent's office to discuss what the Superintendent described on his letter as a matter of importance. Mr. Beilan of course appeared. Superintendent told Mr. Beilan at that time that he had certain information which bore upon Mr. Beilan's fitness to continue to be a teacher. Mr. Beilan invited him to tell what that information was and what he had on his mind.The Superintendent agreed to and did ask one question to wit. “Were you in 1944 press director of the professional section of the Communist Political Association?” Mr. Beilan asked leave to consult a counsel. And as the Superintendent testified, that was entirely satisfactory to him. Mr. Beilan thereupon left and did consult counsel. Nothing happened until about four months later in October. Specifically on the 14th of October, 1952, another similar letter was directed to Mr. Beilan by the Superintendent. He came again and then told the Superintendent that counsel had advised him that he could not legally be asked questions such as that. At that point the Superintendent said, “I don't want you to think this is a matter of idle curiosity on my part. This is a serious and important question of your fitness. And your persistent refusal may lead to your dismissal.” Mr. Beilan nevertheless refused to answer the question. He went back to school and he continued in his job teaching English at Simon Gratz High School, Philadelphia, and continued to be rated competent for 13 months. Superintendent permitted those efficiency ratings to be entered on his records. Your Honors, if you care to note, we'll see at page 74 of the record that we have inserted photostatic copies of those 23 years of efficient ratings. But, then came the Committee on Un-American Activities. November 16th of 1953, only 13 months after his last interview with the Superintendent, Mr. Beilan was summoned along with almost 30 other Philadelphia school teachers to public televised hearings in Philadelphia. I'm sure that Your Honors are by now sufficiently familiar with the proceedings of that Committee particularly from the Watkins case, that it takes very little imagination to conjure up a picture of what happened in our District courtroom that day. In fact, it was three days Your Honor. Quite naturally it was highly publicized in advance. The first witness in accordance with the Committee's custom was a friendly witness and Mrs. Dorothy Funn, I recall, who described in great detail her intimate connection with the Communist Party and in generous generality, the influence of communism on school children. Of course Mrs. Funn was from New York, but this did not bother the Committee. They needed this purpose to their investigation.
Speaker: Did the Committee (Inaudible) about this case?
Speaker: It is as part of the factual matrix Your Honor because it is part of my contention that had the Committee not come that 13-month period might have been indefinitely extended and would never have happened. This man might not have been dismissed but for that. Now it is of course perfectly true that in this case the Supreme Court of Pennsylvania expressly refused to decide whether the refusal to answer before the Committee could be independently a ground for dismissal. That arose in this fashion. We had argued the case before the Supreme Court of Pennsylvania while the Slochower case was pending in this Court. Subsequently, Your Honors decided the Slochower case. Then the Supreme Court of Pennsylvania on its own motion ordered reargument on the constitutional questions and its order specifically so stated. At the Slochower, realizing that Your Honors had held in Slochower that a plea of the Fifth Amendment before a Committee was insufficient for firing. The Supreme Court didn't decide that that was insufficient but expressly says in its opinion, “We decline to decide it. We find it unnecessary to decide it.” But factually, that is what happened. Petitioner appeared before the Committee. He was questioned about the same type of affiliation. I might say that the latest affiliation mentioned in any of the questions put to him was 1947. This now, mind you, is 1953. In any event, he pleaded the Fifth Amendment. He did on the other hand submit a statement to the Committee in which he said that he had never illegally advocated overthrow of the Government and he also said that he was perfectly willing to talk about himself if the Committee would agree not to ask him about other people. And Congressman Walter who was Chairman of that particular subcommittee had declined that offer so we don't make deals with witnesses.
Felix Frankfurter: Mr. Carroll, in answer to Justice Harlan's question as to the relevance of the Committee hearing who said that it -- that what permeated, what took place, what did you say?
John Rogers Carroll: I said Your Honor that it precipitated the dismissal in this case. As it happened --
Felix Frankfurter: Now -- but you do not suggest that he was dismissed because of that, do you?
John Rogers Carroll: The charges which were sustained by the Board of Education included two statements of fact. One, that it refused to answer Dr. Hoyer's question and two, that he re -- that he pleaded the Fifth Amendment before the Committee. Those charges were sustained by the Board of Education by the State Superintendent of Public Instruction but unnecessary to decide said the Supreme Court of Pennsylvania.
Felix Frankfurter: Would it be -- can one really quarrel with Mr. Justice Jones that at best, you can't tell on what ground they went?
John Rogers Carroll: Under the (Inaudible) School, I think that Mr. Justice Jones is absolutely right. Of course I --
Felix Frankfurter: There --
John Rogers Carroll: -- (Voice Overlap) thoroughly with this dissent.
Felix Frankfurter: Well, what is the consequence? Assume you -- assume the Court would agree with dissent, what is the disposition they may hear?
John Rogers Carroll: It must --
Felix Frankfurter: Because he suggests that you go back to the Board.
John Rogers Carroll: That's right, Your Honor.
Felix Frankfurter: To devolve that ambiguity.
John Rogers Carroll: And that may have happened. Except that, I think the Supreme Court of Pennsylvania on arraignment would then find it necessary to consider the application of Slochower which they did not do in this opinion below.
Felix Frankfurter: Well, whatever they trust.
John Rogers Carroll: And that would -- that it abide Your Honors' rule.
Felix Frankfurter: What they may find necessary for them to decide and not for us unless they do not decide something that's constitutionally been raised. That's the moment. I'm just directing my thought to the position of Justice Jones --
John Rogers Carroll: Yes sir.
Felix Frankfurter: -- that -- that the thing is left in a confused decision.
John Rogers Carroll: Certainly is and the -- the result, I would trust, should Your Honors reverse on this case.
Felix Frankfurter: I'm not suggesting but what we will or will do, (Voice Overlap) --
John Rogers Carroll: No, I -- I don't accept.
Felix Frankfurter: -- your view.
John Rogers Carroll: That the Supreme Court of Pennsylvania would then be squarely faced with the questions they left undecided. And that would be for them to decide I would hope in accordance with Slochower.
Felix Frankfurter: But Slochower wasn't this, is Slochower this?
John Rogers Carroll: Slochower applies to the question they did not decide.
Felix Frankfurter: No, but --
John Rogers Carroll: Appearance before the Committee.
Felix Frankfurter: But suppose they pulled that out and say that isn't why we're dismissing it since Slochower wouldn't be relevant.
John Rogers Carroll: No, sir. They'd have to invent something new.
Felix Frankfurter: Well --
Tom C. Clark: (Inaudible)
John Rogers Carroll: You mean that he refused to testify before the Board of Education or you're talking now about the Superintendent. As a matter of --
Tom C. Clark: Suppose it would be different.
John Rogers Carroll: I beg your pardon.
Tom C. Clark: It's a different kind of suit.
John Rogers Carroll: Yes. Well, that's the question with which Your Honors are presented, and I think it's more Konigsberg than Garner.
Tom C. Clark: (Voice Overlap) --
John Rogers Carroll: I beg your pardon, sir.
Tom C. Clark: Was this case Slochower?
John Rogers Carroll: I don't think it would be Slochower because Your Honor writing the opinion in Slochower, said that it would be quite a different matter where the questions asked before the local school authorities.
Tom C. Clark: What about Garner?
John Rogers Carroll: Garner, I think, is an entirely different situation Your Honor. There, and it points up I think, the big difference between this case and that one. In Garner, the State of California had eight years previous to the questioning enacted a statute prohibiting public employees from being members of any sort of communist organization. They then amended the charter of the City of Los Angeles to permit in fact to require disclosures such as the disclosures in Garner. Now, there you have a specific law requiring disclosure by public employees of affiliations which had at the time of the supposed affiliation been prohibited by law for public employees. There was no question but that the employees in California knew that they were forbidden to join this organization.
Felix Frankfurter: But the question isn't whether jointly disqualify them, the question is what inquiry may a Board of Education or any agency of it relevant remain?
John Rogers Carroll: Yes sir.
Felix Frankfurter: We could not yet reach the question even on the assumption that it's restricted to refusal to answer to the Board. Unless you have that question alone, then you have to reach the question --
John Rogers Carroll: That's right.
Felix Frankfurter: -- and they dismissed him because of that. Then you have a question that is, as I take it, not here.
John Rogers Carroll: That's correct sir, but the answer that I was giving to Mr. Justice Clark is this. That the disclosure which was specifically required by the Los Angeles charter for employees was the disclosure of things that they knew eight years previously because of the statute, they couldn't do. Now, in Pennsylvania --
Felix Frankfurter: You're mixing --
John Rogers Carroll: We never --
Felix Frankfurter: Well here, you're mixing up two things. Does it mean that -- that school teachers or persons in -- or teachers in a college, does it mean that inquiring into the fitness of a person in a teaching institution must have been advanced -- must have had advanced notice years before if such a question might be asked him?
John Rogers Carroll: I would say --
Felix Frankfurter: That's what you're contending for either.
John Rogers Carroll: No sir, but I do say this --
Felix Frankfurter: Then what is the relevance of saying in Garner they knew eight years ago.
John Rogers Carroll: That it makes for fairness. I say it's unfair for Pennsylvania to decide in 1952 that these organizations were bad in 1944 and that we can make inquiries about them --
Felix Frankfurter: But you can ask --
John Rogers Carroll: -- without prior warning.
Felix Frankfurter: You can ask people in an educational institutions about their activity not because their activities are bad. The question --
John Rogers Carroll: That --
Felix Frankfurter: -- that were asked them, Professor (Inaudible) weren't all questions that made answer of yes a disqualification --
John Rogers Carroll: That's right.
Felix Frankfurter: A totally different thing. It's like asking a lawyer questions bearing on its fitness.
John Rogers Carroll: This -- the matter to which these questions related Your Honor was just as innocent as those of which Your Honor wrote in Professor Sweezy's case. They were perfectly innocent associations. The reason they can't ask him does not rest upon the fact that these were prohibited by law but rather as Your Honor pointed out, that the mere fact of the questioning --
Felix Frankfurter: Well, I was talking about a --
John Rogers Carroll: -- is an inhibition of the free association.
Felix Frankfurter: -- a very definite thing of questions. I was thinking -- I was taliing about me having been questioned what I thought has happened. From my point of view, that's nobody's business except the authority there, assume I didn't have like opinions. I think you're mixing up things. You talked about the -- the illegality of Congress and inquiring into what may or may not be relevant to the continuing activity of a person, of a teacher. Those are different things.
John Rogers Carroll: Those are different things Your Honor. However, what I --
Felix Frankfurter: It may well be that a school authority or a university authority can ask the person the most innocent question in the world in order to find out whether for one reason or they should lie about it. We don't want to have a liar around the premises.
John Rogers Carroll: That's right Your Honor. But I think that when the questioning takes the form it did here and relates to political association or anything within the First Amendment area, then you have a different story. I think --
Felix Frankfurter: (Voice Overlap) every thing in the First Amendment area -- I don't know what First Amendment area means. I know that the First Amendment is but the Constitution doesn't talk about areas.
John Rogers Carroll: I limit it here, sir, to those types of questions asked about past Communist affiliations and the type as to Professor Sweezy in his case against New Hampshire. That is at least without trying to define the limits of the First Amendment. I'd say those are clearly within it.
Felix Frankfurter: Could you ask him whether he's member of the Klan?
John Rogers Carroll: Under my theory, sir?
Felix Frankfurter: Yes.
John Rogers Carroll: I think not.
Felix Frankfurter: Not. All right. Yet you --
John Rogers Carroll: (Voice Overlap)
Felix Frankfurter: Yet New York had this -- this Court held that New York conferred a statute dealing with membership in the Klan?
John Rogers Carroll: Now that would be a different story had it been done as was in Garner. But we have (Voice Overlap) --
Felix Frankfurter: Well, but if it's within the First Amendment area that no statute can save it as you call it, the First Amendment area.
John Rogers Carroll: I think that --
Felix Frankfurter: I don't want -- I simply don't want us to stop thinking by using the abracadabra First Amendment area.
John Rogers Carroll: I will depart from that if I may then, sir.
Felix Frankfurter: Well, don't (Voice Overlap) --
Earl Warren: Mr. Carroll -- Mr. Carroll, was there anything in the Pennsylvanian laws about the independence of teachers so far as their political views were concerned and -- and the right of people to interrogate them?
John Rogers Carroll: I have cited in the brief at page 16 Your Honor, footnote 14.
Earl Warren: I thought I saw a subject --
John Rogers Carroll: Section 1-108 of the Pennsylvania School Code which provides no religious or a political test or qualification shall be required of any director, visitor, superintendent, teacher, or other officer, appointee, or employee in a public schools of this Commonwealth.
Felix Frankfurter: Well, a -- could the question be asked today except on the assumption that the Dennis case is not to be respected or other cases of this Court? They must be overruled first before that question can be asked?
John Rogers Carroll: In -- if you're talking now about the specific question that was asked of this teacher, Your Honor, remember it related to the CPA, the Communist Political Association and not the party.
Felix Frankfurter: No. Today.
John Rogers Carroll: Now even --
Felix Frankfurter: I'm saying today.(Voice Overlap) --
John Rogers Carroll: Even in Dennis, Your Honors --
Felix Frankfurter: Could a teacher today --
John Rogers Carroll: -- made an exception for that.
Felix Frankfurter: -- be asked that question?
John Rogers Carroll: I'd say no sir because --
Felix Frankfurter: All right.
John Rogers Carroll: Particularly in view of Section 4 (f) of the Internal Security Act and particularly as Your Honors have interpreted the Smith Act in Yates, these are at least membership and officership are purely taken out of the punishable realm.
Felix Frankfurter: Oh, but they're not punishing to me. Is it necessarily punished if a man for one reason or another, assuming it is an invalid reason is asked questions pertaining to his fitness to be a teacher? That punishment on any sense that as in legal meaning of punishment?
John Rogers Carroll: On its face, sir, no.
Felix Frankfurter: All right.
John Rogers Carroll: But --
Earl Warren: In 1944, the date to which this question related, were Communist on the ballot and were they authorized to register in the -- in the State of Pennsylvania and act as other voters do?
John Rogers Carroll: Yes, sir, they did. And as a matter of fact, it was not until December of 1951 when the statute which we know as the Musmanno Act, that Communist Party was outlawed in Pennsylvania. As of 1944 and in the 1948 elections, they were on the ballots in Pennsylvania. But if I may stick for a moment to the facts of this case, I started to say it was the Committee's visit to Philadelphia that really precipitated the firing. Five days later, 26 teachers were all suspended. We then of course had a hearing before the Board of Education on the question of our dismissal. The charges which are printed at pages 46 of the record, were simply, they refused to answer the Superintendent, their plea to the Fifth Amendment before the Committee. Two legal conclusions were drawn from us, incompetency and willful, and persistant violation of the school laws.
Charles E. Whittaker: Were those not the charges?
John Rogers Carroll: I beg your pardon sir.
Charles E. Whittaker: Were not those the charges?
John Rogers Carroll: Those were the conclusions of the charges. The facts of the charges were the two refusals. The two conclusions drawn were incompetency and persistent and willful violation of the school laws. Now, of course, we lost before the Board of Education by a rule of 14-to-1. The State Superintendent, of the construction, and before whom all of these same questions were raised also decided against us. His opinion, as well as that in companion case, (Inaudible) are also printed in the record. I think Your Honors will see from those opinions, there's total free occupation to the question of loyalty and no concern about actual competency in any meaningful sentence. We took an appeal at the Court of Common Pleas in Philadelphia as provided by statute and there we won for the first time. The Court of Common Pleas' opinion is also printed in the record. Then the Board appealed to the Supreme Court of Pennsylvania. I have described the proceedings there. As Your Honors know, there are four separate opinions of the Pennsylvania Supreme Court in this case. The majority opinion written by Mr. Justice Chidsey, practically is on the same grounds as that of the State Superintendent. Chief Justice Jones, then Justice Jones dissented on the constitutional grounds. Mr. Justice Bell dissented on the ground that he thought the wrong Pennsylvania statute was followed, that this being a loyalty proceeding should have been under the exclusive provisions of the Pennsylvania Loyalty Act. Now, Mr. Justice Musmanno wrote what he calls an opinion concurring with preservations. He likes the majority opinion but finds it regrettable where the majority cites two cases of Commonwealth ex rel. Roth against Musmanno and Schlesinger's petition in both of which he was the respondent prior to his election to the bench. He says that if in those cases Roth and Schlesinger were denied due process, then so was Beilan. Now, I am in some doubt as to whether that's really a concurring opinion or a dissenting opinion since majority says it's the law of Pennsylvania and he says it's a shame that they have to rely on these cases because they were certainly in the same due process position as Beilan. The first argument that we make to Your Honors is this. That you simply cannot fire a competent school teacher on the ground of incompetency without a hearing on competency. They gave him no such hearing. We had a formal hearing before the Board of Education but the only testimony, the only relevant issue was whether he refused to answer. Now, I said that in the sheerest sense, that is a denial of the opportunity to be heard on the real issue on which you're being fired.
Speaker: There's an opportunity in that the petitioner here believes that (Inaudible)
John Rogers Carroll: Your Honor now refers to his refusal to answer the Superintendent's question.
Speaker: Right.
John Rogers Carroll: If there is any rational evidence to be found in that refusal, rational evidence of the incompetency, then I would say that Your Honor is correct. But our contention is that there is none. Now, we have this situation in Pennsylvania. We have since 1951 a very carefully drawn comprehensive Loyalty Act which covers all state employees and specifically school teachers, the Board assiduously avoided using that Act. Superintendent said all these questions had to do with this area of Communist Association. If that was an interest, then he could have proceeded under the exclusive provisions of that Act. He didn't. Instead they chose to charge simply the refusal to answer as incompetency. Now, what's the evidence in this record? I've already invited Your Honors' attention to petitioner's Exhibit 1 at page 74, which shows 23 consecutive years of competent ratings. In addition, Your Honors will note that the last rating is made 10 days after he was publicly suspended by the Superintendent. I've also printed in the appendix to the brief the section of the Pennsylvania School Law which requires that in competency cases, the issue is to be decided on the basis of the official rating cards. They just made up the rating card in which they said refusal to answer is incompetency. In addition to that I suggest that the fact unlike Konigsberg where Your Honor Mr. Justice Harlan made some point of the rule that the applicant for the bar had the burden of proving his good moral qualifications. Here, on the other hand, we had an incumbent teacher with tenure and one of the important incidents of that tenure is that in any charge against him, the burden of proof is on the Board of Education to show by preponderance in the evidence that he did commit the act which makes it different.
Felix Frankfurter: Under -- under Pennsylvania law did the tenure which he had -- the tenure that could not be changed by your legislature.
John Rogers Carroll: It could be changed by the legislature, Your Honor. There's nothing in the Constitution of Pennsylvania that would prohibit such a legislative change. However, this is the way that tenure was at this time and remains. Now --
Felix Frankfurter: And can -- does that -- is that the Act, I ought to know but I don't, is that the Act under which the procedure for termination of the tenure is defined?
John Rogers Carroll: Yes sir. That was --
Felix Frankfurter: Would you mind stating again what that procedural requirement is?
John Rogers Carroll: The procedural requirements if Your Honor please, I have copied all the relevant sections of that statute both in the petition and brief. And Section 1123 of the Pennsylvania School Code provides the only valid courses for termination of a contract heretofore or hereafter entered into with a professional employee shall be immorality, incompetency, intemperance, cruelty, persistent, negligence, mental derangement, persistent, and willful violation of the school laws of this Commonwealth on the part of the professional employee. Now -- then make some exceptions for retirement and the closing of school districts. The succeeding section is the one that I just referred to, that provides this. In determining whether a professional employee shall be dismissed for incompetency, the professional employee shall be rated by an approved rating system which shall give due consideration to personality, preparation technique, and pupil reaction in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Public Instruction and to be revised from time to time by that department in cooperation with other agencies.
Felix Frankfurter: And -- and they had to follow that procedure was the ground was (Inaudible) of your strong Court of Common Pleas.
John Rogers Carroll: No, sir. The Court of Common Pleas went a bit further from that and they just give you the -- what I regard as the gist of its opinion as this. The procedure pursued by the school authorities was patently erroneous and the grounds upon which the dismissal was based are not supported by the record. The school authorities obviously desired to dismiss appellant because they suspected him of disloyalty. If the Loyalty Act been followed, appellant would have been afforded the safeguards, would have been entitled to the safeguards afforded by the provisions of that statute. The Tenure Act was utilized as an expedient shortcut. To this unauthorized procedure, we dare not give our judicial sanction. We should be ever mindful of the sage observation of the Supreme Court of our land, “the history of liberty has largely been the history of the observance of procedural safeguards citing McNabb.”
Felix Frankfurter: You don't agree with them of what -- what the Court said about the Loyalty Act, of course.
John Rogers Carroll: I beg your pardon, sir.
Felix Frankfurter: You do not agree what they say about following the procedure of your Loyalty Act.
John Rogers Carroll: Your Honor, that's half of my complaint. I do agree with it. They should have followed the Loyalty Act. But --
Felix Frankfurter: (Voice Overlap) --
John Rogers Carroll: -- Mr. Rhoads has conceded previously and I assume still will that the reason he didn't was because he didn't have any evidence against this man --
Felix Frankfurter: (Voice Overlap) --
John Rogers Carroll: -- under the Loyalty Act.
Felix Frankfurter: As I understood your answer to the Chief Justice, they couldn't possibly have with -- under the Loyalty Act in the state of -- political state of the Communist Party of the time.
John Rogers Carroll: That's right sir.
Felix Frankfurter: Is that right?
John Rogers Carroll: And in addition to that, our Loyalty Act reads in the present tense in order to dismiss and they have to find that as of 1953, he was a subversive person as thereupon and the most recent association that anybody has heard of in this case was that in 1947.
Felix Frankfurter: That's why I say I didn't think you'd -- you'd have to reject what the Court of Common Pleas said about the Loyalty Act, that that was the grounds.
John Rogers Carroll: Well, no sir, it would simply leave us in this position. I'm delighted to go through a proceeding under the Loyalty Act with poor knowledge that we would win.
Felix Frankfurter: Well I thought if -- in your answer to one of my questions that the door is shut to such an inquiry.
John Rogers Carroll: The door maybe shut to inquiry Your Honor --
Felix Frankfurter: I didn't even suggest that I agree with the Court of Common Pleas, I don't know enough but I -- I felt it was clear that you would have to reject that suggestion.
John Rogers Carroll: I do reject it because what I'm talking about under the Loyalty Act is letting them bring in evidence aliunde to its questions. Let them bring in affirmative proof of some subversive act or association. I say that under no circumstances may they take as proof either of disloyalty or incompetency is mere silence on the question.
Felix Frankfurter: But there's nothing else in this record except the suggestion that he once was affiliated with the then form of a Communist Party, is that right?
John Rogers Carroll: That's the only question --
Felix Frankfurter: And therefore --
John Rogers Carroll: -- the Superintendent asked. Now, there were several other questions asked --
Felix Frankfurter: He had from --
John Rogers Carroll: -- by the House Committee.
Felix Frankfurter: -- from your point of view, that's a bad inquiry.
John Rogers Carroll: It is at least in the present state in the then state of the Pennsylvania law. Now, had the situation existed that did in Garner, we have a specific disclosure statute, I would say that under those circumstances, Your Honors' decision in Garner --
William O. Douglas: By the way, what's this --
John Rogers Carroll: -- would apply.
William O. Douglas: What's the status of the Communist Party in Pennsylvania? Is it outlawed?
John Rogers Carroll: It is outlawed under the Musmanno Act of 1951.
William O. Douglas: Was it outlawed at the time of these proceedings?
John Rogers Carroll: December 1951, it was outlawed, therefore, these proceedings having taken place in 1952 and 1953, it was there now.
William O. Douglas: But as respect --
John Rogers Carroll: I must say, I think the statute is unconstitutional.
William O. Douglas: I beg your pardon?
John Rogers Carroll: I think the Pennsylvania law that outlaws it is unconstitutional.(Voice Overlap) --
William O. Douglas: Well, that's not a question, that is the -- at the time of his -- Beilan's association with the -- his alleged association with the party, was it outlawed in Pennsylvania?
John Rogers Carroll: No, sir. Neither with respect to the time when Superintendent asked him about 1944 or with respect to the times asked him before the congressional committee, the latest of which was 1947, where at least four years after that, the Communist Party was lawfully (Voice Overlap) --
William O. Douglas: 1951?
John Rogers Carroll: 1951. I believe it's the Act of December 22nd, 1951. Well, if Your Honors please, I think I exhausted my time but I'd like to -- since I have five minutes, sum it up. The second contention that we made on the procedural --
Earl Warren: I think you have not exhausted your time. You have 45 minutes.
John Rogers Carroll: Well, I think that the clerk just gave me the five-minute light, sir.
Earl Warren: Well, no. No, I think -- but he is warning you, you probably told him how much time you want for rebuttal, didn't you?
John Rogers Carroll: 10 minutes, sir.
Earl Warren: Yes. That's -- well that's different.[Laughter]
John Rogers Carroll: In any event, our principal contention on procedural due process is that you cannot fire a public school teacher on the ground of incompetency without any hearing on incompetency and without any evidence of it.
Charles E. Whittaker: How long did the (Inaudible)
John Rogers Carroll: That --
Charles E. Whittaker: (Inaudible)
John Rogers Carroll: Purpose was as stated in the charges which Your Honor will see beginning at page 6 of the record could determine whether or not he had refused to answer Dr. Hoyer's question and refused on the ground of the Fifth Amendment to answer the Committee's questions. Now the conclusion would be drawn whether they sought to drew -- draw was incompetency. But naturally, if you're talking about the -- the competency of the school teacher and you build into the charges of limitation upon relevant evidence to wit, did you refuse to answer this question? That's the limit of the hearing. I'd say that's not a hearing on incompetency at all in any rational sense of the word.
Charles E. Whittaker: (Inaudible)
John Rogers Carroll: He was, sir.
Charles E. Whittaker: (Inaudible) whether or not he was in fact a member of the (Inaudible)
John Rogers Carroll: No, sir, he was not.
Charles E. Whittaker: (Inaudible)
John Rogers Carroll: He did not nor did he refused to. The --
Charles E. Whittaker: (Inaudible)
John Rogers Carroll: The situation occurred at the -- Your Honor will see it toward about page 64 of the record. At the end of the hearing, one of the members of the Board expressed the desire to question Mr. Beilan.I made no objection nor did he. But another member of the board objected and that board member's objection was sustained by the Board.
Charles E. Whittaker: Now, did he -- and have been incompetent (Inaudible) in your view?
John Rogers Carroll: It would have been irrelevant to the charges we were then proceeding on Your Honor. You see, the charges were very specific that on the 14th of October he refused to answer. That on -- the 16th or 18th of November, 1953, he pleaded the Fifth Amendment. Those were the only issues in that hearing. The -- the rules of relevancy would dictate that further inquiry outside of the scope of those narrow charges would have been improper. Indeed, in other cases the Board so ruled, although not consistent (Inaudible)
Speaker: Well --
Felix Frankfurter: Mr. Carroll, I'd like to ask you a question which to me is extremely important. When asked of the argument that the determination -- termination of a tenure of a teacher on the score of incompetency requires an opportunity for him to be heard, is that right?
John Rogers Carroll: That's right, under Pennsylvania law.
Felix Frankfurter: Well, under Pennsylvania law but --
John Rogers Carroll: Oh, you're now talking about my contention, sir?
Felix Frankfurter: Yes.
John Rogers Carroll: That is my contention.
Felix Frankfurter: As a matter of due process.
John Rogers Carroll: Right.
Felix Frankfurter: A matter of due process. I'd like to ask you this question because if you're right of the very serious proposition that's in this Court. Speaking of the institution about which -- the only institution about which I really know the procedure, all those schools they've had time out of mind, a thing called a visiting committee of eminent lawyers and judges. So that it's a class ruling. Now, suppose such a visiting committee turned in a report first to the faculty and -- and or to the two governing bodies of that institution. And both governing bodies are convinced of the validity of the conclusion reached by three pursuits as they often they are eminent judges. There's a particular teacher who is quite incompetent. I can assure you that can happen.[Laughter]
John Rogers Carroll: Thank you.
Felix Frankfurter: And, he is this on the basis of that finding adopted by the governing authorities in the school dismissed. But I want to know from you is whether he has any other remedy except to go to the American Association of University Professors and say that in fact he was dismissed for some sinister inquiry. Can he come to the Court and say, "I had a right to have a hearing, I have a right to have a lawyer, at least I have a right to make a speech for myself."
John Rogers Carroll: I think so.
Felix Frankfurter: As a matter of due process, Fourteenth Amendment?
John Rogers Carroll: That -- you're now speaking of a private institution.
Felix Frankfurter: Well, I've got to ask you, do you think that -- that's different as to -- as between a private and a public institution?
John Rogers Carroll: I do, sir. Because of the terms --
Felix Frankfurter: And why?
John Rogers Carroll: -- of the Fourteenth Amendment.
Felix Frankfurter: What?
John Rogers Carroll: Because the Fourteenth Amendment applies in terms to public agencies, state agencies, and not to private schools.
Felix Frankfurter: Well, suppose -- suppose after all the -- a public college is found to be operating under this statute of Commonwealth of Massachusetts where you'd have a statute which authorizes of it. Will that be unconstitutional?
John Rogers Carroll: It would not be as clearly unconstitutional as for a Public School System to do it as they did in this case.
Felix Frankfurter: I always find it difficult to know when a thing is clearly unconstitutional or cloudily unconstitutional.[Laughter]
John Rogers Carroll: Your Honor has told us so many times.
Felix Frankfurter: Yes, but he leave no impression.
John Rogers Carroll: It must, sir. [Laughter] To be apparent, in answer to your question that at least, he's entitled to a hearing at which the real issue whether they chose loyalty or competency was fully heard.
Charles E. Whittaker: Well, (Inaudible) -- do not the charges make the real issue?
John Rogers Carroll: No, sir. I said they made a fabricated issue that this teacher's competency was unquestionable.
Charles E. Whittaker: Well, now your dealing with the weight of evidence there, aren't you? The charges do present the issue, do they not?
John Rogers Carroll: They -- they present the whole issue, Your Honor, but (Voice Overlap) in the result.
Felix Frankfurter: No.
John Rogers Carroll: That's what --
Felix Frankfurter: (Inaudible)
John Rogers Carroll: These two matters, two refusals that were relevant in those charges.
Charles E. Whittaker: Well, if one has an action of remedy, his adversary can't complain that he chose one rather than the other as I would think.
John Rogers Carroll: I think Your Honor that he can. Well, this is personally a matter of Pennsylvania law and not with (Inaudible) of Your Honors.
Charles E. Whittaker: Yes.
John Rogers Carroll: If the field of the inquiry is into disloyalty and there is a specific and exclusive law relating to loyalty then I think the inquiry must be on that issue.
Charles E. Whittaker: Even though it also adds up to incompetency?
John Rogers Carroll: Then you'd get an added opportunity to declare it on the incompetency.
William J. Brennan, Jr.: Well Mr. Carroll, don't -- do -- don't I or do I correctly read the majority opinion of the Supreme Court of Pennsylvania is holding that the refusal to answer the Superintendent's question of itself in standing alone is incompetency within the meaning of the Pennsylvania law.
John Rogers Carroll: There is no doubt that that is their holding, sir.
William J. Brennan, Jr.: Well now, if that is their holding, what in the way of a hearing on that question as I understand there is an admission that the question was not answered, isn't that so?
John Rogers Carroll: That's -- on the challenge.
William J. Brennan, Jr.: Well, if that's the fact, what purpose would a hearing serve?
John Rogers Carroll: The hearing Your Honor in such a case, I believe, would go into the matters prescribed by Section 1123 of the statute which I've read a while ago rather than be limited to that.
William J. Brennan, Jr.: Well now, how can we reach that conclusion if the Highest Court of the State has held, as you concede it has that the refusal to answer however much I might disagree with that reasoning, if that is the holding of the Highest Court of the State, what can we do about it?
John Rogers Carroll: Your Honors can do with it just as you did to the moral character requirement under the California Bar in the Konigsberg case. There are some constitutional limits upon the State's right to redefine the English language.
William J. Brennan, Jr.: You mean by that of the -- the conclusion that the mere refusal to answer was incompetency is so irrational a conclusion as that it's a denial of something?
John Rogers Carroll: Just as Mr. Justice Black pointed in Konigsberg, it is no rational evidence of incompetency or bad moral character.
William J. Brennan, Jr.: And in that sense, the denial of due process, is that right?
John Rogers Carroll: That's right.
William J. Brennan, Jr.: Well now, is that -- is that the argument you're making to us or that's just one of your arguments?
John Rogers Carroll: That's -- that's one of them. That's one in my brief, what I have been discussing here is rather point three. It is more in procedural due process.
Earl Warren: Mr. Rhoads.
C. Brewster Rhoads: Mr. Chief Justice, and with respectful submission to Your Honors. The issue it seems to me in this case is threefold and it is brief whether in the first instance, State of Pennsylvania has the constitutional right to dismiss a public school teacher for refusal to answer pertinent questions in an area relating to past communist affiliations. Second, whether the interpretation by the Supreme Court of Pennsylvania, that such a refusal to answer in point of fact constitutes incompetency under the School Code of Pennsylvania is in fact an interpretation of a state statute and does not involve constitutional questions, and thirdly wether in the circumstances of this case, there was in any degree an absence of due process. Now our position, submission to Your Honors is from start to finish that the issue here was, one, primarily of local law that in the first instance the pertinency of the questions that were asked of the school teacher and for the moment I'm not going to debate very much the issues of fact which have been discussed by my friend. But the question whether the inquiry which was initiated in a professional interview by the superintendent of schools in Philadelphia was a proper inquiry. In other words here in 1952, he brings in a school teacher for a professional interview and he asks him certain questions regarding prior communist affiliations. The school teacher says in substance, “I don't know whether I'll answer those questions but you read them to me.” And the first question that was read and others of course were to be propounded was whether in 1944 he had been Press Director of a Communist Political Association to which he answered as Mr. Carroll said, “I'll have to seek advise of counsel.” Later on, seven months later in October, he came again, in the same spur of the professional interview and said, “I have been advised by counsel that you have no right to ask that question.” This is important if Your Honors please, bearing on the one question asked that question or any similar question. Consequently, the Superintendent stopped at the threshold. And in that moment, he specifically warned that teacher Beilan that he was inquiring. The reason for his inquiry was the professional fitness, i.e. the adequacy, the competency of this particular person and that is adhered the Superintendent was the reason I'm asking these questions.
Earl Warren: Suppose he had asked him if he was a member of the Republican Central Committee.
C. Brewster Rhoads: The Republican Central Committee, I would have thought sir that that would have nothing to do sir with the fitness or the competency of a teacher and it seems to me that there is a completely different area when you were dealing here with the sensitive area as Your Honors have said of the Public School System where the question of Communist affiliations is an important matter. It isn't simply a matter of asking what is a person's political or religious belief? It is asking a matter that has -- goes to the very integrity as I view it if Your Honors please, of the school system.
Earl Warren: And now in -- in 1944, the date to which this question was directed, did the Republican -- did the man have any -- any less right to be a Communist in the State of Pennsylvania than he had to be a Republican?
C. Brewster Rhoads: I --
Earl Warren: And did have any less right in 1944 to participate in public elections from a Communist standpoint as they did to a Republican?
C. Brewster Rhoads: I think, sir, that the answer to that question lies again in the area of the interrogation, the --
Earl Warren: Well, let's -- let's get away from the area like -- like --
C. Brewster Rhoads: (Voice Overlap)
Earl Warren: -- Justice Frankfurter had been taking about. Did he have any less right to -- did he have any less right in 1944 to register as a Communist, to vote as a Communist, to have -- to engage in political activity as a Communist than he did to register, vote and, engage in Republican problems?
C. Brewster Rhoads: I think he would have had the same rights, sir.
Earl Warren: All right.
C. Brewster Rhoads: And register as a Republican or as a Communist --
Earl Warren: All right.
C. Brewster Rhoads: -- equally they were appropriately proper.
Earl Warren: Yes. Then why -- why do you make the distinction by saying that it would have been improper for the Superintendent to have asked him if he had been engaged in Republican politics in 1944?
C. Brewster Rhoads: Well, for this -- the only answer I can give you to that, sir, is that it seems to me that no matter how we cut the cable, the situation is different with reference to a -- an interrogation by a school superintendent regarding what has been conceived to be a suspect organization even though legal, if Your Honors please, as distinct from what we recognized as a straight political association. In other words, as we come to Garner and in a moment, I would like to advert to Garner. The situation in Garner --
Earl Warren: But before we get to that, we had -- we had a case recently where the authorities considered the Progressive Party as suspect, and they -- they endeavored to interrogate a man about his activities in the Progressive Party. Now suppose that they had asked this man about some activities in the Progressive Party, would you have distinguished that from this case?
C. Brewster Rhoads: I think in Sweezy, you could possibly have distinguished it -- distinguished this case. I would think that the Progressive Party might possibly have approached more nearly the area -- I'm sorry, the situation.
Earl Warren: That's all right. It doesn't (Voice Overlap).
C. Brewster Rhoads: (Voice Overlap) -- [Laughter]
Earl Warren: I would charge him.
C. Brewster Rhoads: Approach more nearly --
Felix Frankfurter: Who are the beneficiary of that remark, Mr. --
C. Brewster Rhoads: Thank you sir. Well, coming to you, I should like to have been the beneficiary.
Speaker: (Inaudible)
C. Brewster Rhoads: Well, I simply --
Speaker: (Inaudible)
C. Brewster Rhoads: Well, I -- I simply possibly should not so readily concede it, Mr. Justice Harlan but it seems to me that in the --
Speaker: (Inaudible)
C. Brewster Rhoads: It -- yes, sir. In -- in this particular job, I -- I should think that there would be a far closer trespass upon something which we would call under Garner a non-pertinent inquiry. Now it seems to me that the -- whatever you deal and particularly with an area from 1941 on up to 1951 or thereabouts with the Communist Political Association which I think we all recognized as the wartime guise if you will, of the Communist Party, but that doesn't affect my answer to the Chief Justice's question. That nevertheless when you're dealing with that type of examination, you're dealing with an urgency irrelative to the school system which doesn't quite apply, Mr. Justice Harlan, where we're dealing with what I would call a straight open function board question regarding sonic relationships or Republican or Democratic parties and so forth.
William J. Brennan, Jr.: Well, then Mr. Rhoads --
C. Brewster Rhoads: Yes, sir.
William J. Brennan, Jr.: -- does that mean that what the Supreme Court of Pennsylvania held was not that any refusal to answer a question is incompetency within the meaning of the statute but only a refusal to answer a question directed to previous Communist affiliation?
C. Brewster Rhoads: No, sir. I do not think, Mr. Justice Brennan that that is the extent of the Supreme Court's decision far from it. My feeling is that the Supreme Court's decision on the facts of this case said that the particular inquiry which had to do with past associations in the Communist Party was in any event extremely pertinent. But I would certainly think, sir, that the Supreme Court's decision as we know it, as we read it here would be that the refusal to answer any pertinent question would constitute --
William J. Brennan, Jr.: Even -- even that would regard to membership on a Republican committee?
C. Brewster Rhoads: The question in my mind, Mr. Justice Brennan is whether we would interpret that as pertinent. Mr. Justice Harlan and I were just discussing it a moment ago.
William J. Brennan, Jr.: Well, what I -- well, what I -- I know mine's a little different, the approach from --
C. Brewster Rhoads: Yes.
William J. Brennan, Jr.: -- Mr. Justice Harlan, but I'm trying to get to is, would in your view the Pennsylvania Supreme Court rule as laid down in this case have justified a finding of incompetency if the question had been, "Were you a member of the Republican Central Committee in 1944?"
C. Brewster Rhoads: Well, I would certainly be inclined to think sir, that the School District in Philadelphia would never have sanctioned any such type of inquiry.
William J. Brennan, Jr.: Well, that -- that might -- what --
C. Brewster Rhoads: Well, I --
Felix Frankfurter: Then or now?
C. Brewster Rhoads: Then or now, sir. And -- [Laughter]
William J. Brennan, Jr.: That's not my question. I'm trying to find out your view of the scope of the holding of the Pennsylvania Supreme Court on the definition of incompetence.
C. Brewster Rhoads: My interpretation of the extent of the Supreme Court's decision is that it is incompetency for a teacher under the Act of 1949 in Pennsylvania to refuse to answer what judicially could properly be determined to be a pertinent question bearing upon his fitness. Then sir, coming down to your specific question whether the Republican Central Committee would be such a question, it would seem to me would be a matter for judicial determination. I am inclined to think sir, that the Supreme Court of Pennsylvania judicially would have determined the question not pertinent and would not have held as it did in this case.
William J. Brennan, Jr.: Well, then does that (Inaudible) of the decision of the Pennsylvania Supreme Court (Inaudible) if the question sought an answer related to previous Communist (Inaudible)
C. Brewster Rhoads: I think not -- not only colored by the fact, it was definitely influenced by the facts sir, just as if the question, and I raised it in my brief, just as if the same question and similar inquiry had been directed toward the teacher's morality if the question had been an inquiry regarding dope peddling which has been raised by the Supreme Court in its decision and there had been a refusal to answer. I think with the same force, I would have argued that the question in the matter of dope peddling was material and pertinent, and a refusal to answer would have constituted incompetency. We have had several cases in Pennsylvania which I've cited in my brief, the Horosko case, the Bethlehem City case, and numerous others in which the term incompetency has been defined by the Supreme Court in its broad reach of the term as was said in this particular decision. We had for example in the Bethlehem City case, the facts regarding a teacher who was found to have been throwing dice, for example. In another case, there was a physical in -- disability caused by improvident conduct in the part of a school teacher and it was said to be incompetency. So that the idea that you can't equate incompetency with any number of pertinent inquiries would hardly stand up in our school code and I think this is an equation with one of those pertinent inquiries.
Felix Frankfurter: Mr. --
Earl Warren: Mr. Rhoads, may I ask you this question. Assume -- assume that the petitioner had answered that question of the Superintendent and had answered it in the affirmative that in 1944, he had been a member of that -- of that Committee. Could they have discharged him for incompetency?
C. Brewster Rhoads: No sir. And I have so argued and so stated in my brief and so stated to Your Honors. In other words, the question of what would be the answer to the particular inquiry has nothing to do with the problem of competency or incompetency or the right to ask it, that very question, Mr. Chief Justice, was decided. As I understand the situation, in Garner where the question of the affidavit -- I beg your padon.
Earl Warren: No, don't. I --
C. Brewster Rhoads: Where the question of the validity of the affidavit arose and Your Honors will recall there. The question was a broad affidavit question, “Were you ever a member of the Communist Party or the Communist Political Association?" Which even at that time was a lawful organization and in insisting that the affidavit requirement was right. This Court said that it was pertinent. The mere fact that it had to do with past associations is indifferent but coming specifically to Your Honors' question, you said sir, that not before us is the question whether the city may determine that an employee's disclosure of such political affiliation justifies his discharge. And my answer sir, is, that we have never taken and do not now take the position that upon the answers to specific questions would depend the right to dismiss. Our contention throughout this proceeding is that in the area of the Public School System in the matter of the protection of its integrity, this type of inquiry is proper. That it is the duty of a public school teacher by virtue of the peculiar relationship existing between a public employer and a public employee to answer pertinent questions. And that you cannot, by virtue of your refusal to partake or join in such an inquiry thwart what has been conceived to be by this Court and courts throughout the nation to be a proper inquiry that you can't work that type of inquiry and then say that you are competent.
Felix Frankfurter: Mr. Rhoads --
C. Brewster Rhoads: Yes.
Felix Frankfurter: -- may I put to you a question of -- I hope, perhaps Mr. Carroll would also find time to deal with (Inaudible). Suppose your Superintendent of Schools had opened these proceedings with district or any teacher, with this by statement to the effect that there is a widespread, though wholly false and unfounded belief in the neighborhood, whence this school draws its inference, that the school is Communist really, that nine-tenths of the teachers are members or were members of the Communist Party. I have the best of reasons for knowing that that isn't true and this is Superintendent speaking. But I would like to be able to disprove that which is damaging to the conduct of a school system as effectively as I can by the testimony of the teachers. And therefore I'm going to ask you a question, with that background and for that reason, and for that -- and in view, would your case -- would you think your case was different? That Mr. Carroll said, this case is different if in such stated circumstances, the inquiry was made.
C. Brewster Rhoads: Mr. Justice Frankfurter, I think the inquiry in the case supposed by you would be equally pertinent, equally proper. I take it --
Felix Frankfurter: Wouldn't it be more so if one employs into moral lesson about it.
C. Brewster Rhoads: Well, I -- I don't know whether it would be more so. The fact to the matter --
Felix Frankfurter: It's been found to be a -- that --
C. Brewster Rhoads: There --
Felix Frankfurter: Is that the fact that there would be in the mind of the Superintendent of the Schools with all the difficulties that all of us who knows, the Superintendent have in a -- it's community, in giving his reasons with the propelling considerations rather than certainly in his mind that the peaceful conduct with the school system.
C. Brewster Rhoads: Well, I think sir, that when Your Honors study the record in this case that the Dr. Hoyer did, it seems to me sir, give full opportunity to this particular teacher to know that there was a type of inquiry going on. He said, I have questions right at the start. We don't deny that he's questioning said loyalty. He said we have certain unimpeachable evidence to the effect that -- that would affect your loyalty, your fitness to be a member of the Public School System. He gave the teacher full opportunity to know what was the nature of the inquiry being made. Now, it seems to me --
Earl Warren: Mr. Rhoads, if -- the thing that I'm trying to get straightened out in my mind is this. You say that this question that the Superintendent asked about Communist affiliations in 1944 when it was legal was entirely pertinent, relevant, and -- and appropriate. You say on the other hand that you -- you think to ask if he was a Republican, at that same time would not have been pertinent and would not have been appropriate. I assume that you put the Democrats in the same rule. Now, on the other hand, you get somewhere in between when you say, "Well, I'm not so sure if it was the Progressive Party that you asked about. It might or it might not have been -- been proper." Now, how or where it -- what is the standard? How -- how is the Board going to determine which party affiliations and activities it can inquire of a teacher about and which party affiliations is it going to -- to say that it cannot inquire about, bearing in mind that you do have a constitutional section which -- which says that no political test of any kind shall be given other -- other than the oath of allegiance which they -- which they take. Now, where is the dividing line? How can you say to me that -- that is -- it would be wrong to ask him about being a Republican? It's very doubtful whether it would be or it is at least doubtful whether you could ask him about the Progressive Party and totally proper to ask about the -- the Communist Party which at that time was equally legal with all the others?
C. Brewster Rhoads: Now, specifically the first answer to that question, sir, it seems to me that we rely in the decision of this Court in Garner. In Garner, Your Honors say that as to the same political association, it's legal. Your Honors said that it is a perfectly proper and pertinent inquiry to go back not to 1944, one question, but were you ever? This was in 1951 when the affidavit was asked for, were you ever a member of a Communist Party or the Communist Political Association? Garner says that this inquiry was correct. But, in order to more specifically answer Your Honor --
Earl Warren: That was -- that was statutory, wasn't it?
C. Brewster Rhoads: Oh, it was statutory but -- but it seems --
Earl Warren: Do you --
C. Brewster Rhoads: I beg your pardon?
Earl Warren: Do you think that the -- that the Superintendent can manufacture the reasons of his own that way --
C. Brewster Rhoads: No, sir.
Earl Warren: -- independent of the legislature?
C. Brewster Rhoads: No, sir. I do not and --
Earl Warren: The legislature in California had done that.
C. Brewster Rhoads: Yes, sir.
Earl Warren: So has the municipal government of Los Angeles?
C. Brewster Rhoads: I don't think that the Superintendent or the Board can manufacture. But the Superintendent can if it is an appropriate inquiry, initiate the inquiry. The Board can follow up the inquiry and if it believes that those facts add up to incompetency, it may charge incompetency. It is then for the Supreme Court of the sovereign State of Pennsylvania to determine judicially whether there had been an improper or an impertinent question or whether the question was pertinent and within the scope of the authority of the School Superintendent to ask. That's as far as -- as we can go. And it's --
Earl Warren: But I thought -- I thought that your legislature have prescribed the method, a precise method for testing the loyalty of school teachers.
C. Brewster Rhoads: Oh, if in the question --
Earl Warren: And -- and had -- it had provided that there were certain procedures that they must go through in order to -- in order to remove a school teacher for disloyalty.
C. Brewster Rhoads: If Your Honor pleases, there are many situations involving past associations which may seem to smack if you will, of disloyalty and in which nevertheless the evidence if you will, would not add up to disloyalty. We haven't suggested in this case disloyalty. We don't know what might have been the case Mr. Chief Justice, if this inquiry had not been thwarted at the threshold. If for example, question after question had been asked and answered which would have led up an equated ultimately something which the School Board would say, "Adds up to disloyalty, we would then of course have had to proceed and we've said it all along under the Patriot Act and charge this man with disloyalty." But the Supreme Court has said in this case that we were not charging disloyalty. We did not charge disloyalty. We were merely asking proper questions which were not answered and therefore an area of inquiry proper within the concept of the integrity of the public schools was thwarted. Now, that's what the Supreme Court of Pennsylvania said in this case, constituted incompetency. And if it said it, it seems to me that that represents the final decision of a State Supreme Court. For example, just to -- to show how this adds up in the mind of the Supreme Court of Pennsylvania, 121 of my record if Your Honors please, where the Court is commenting upon the misguided, secretiveness, and lack of candor of this teacher as referred to by the Common Pleas Court. Then, says the majority opinion on page 121, the secretiveness and I'm quoting, "of a deliberate, the secretiveness, consisted of a deliberate and insubordinate refusal to answer questions of his administrative superior in a vitally important matter pertaining to his fitness." Such conduct stamped him with incompetence as a professional employee of the public schools. Now, beyond the facts of this case, if Your Honors please, I can't go, the Supreme Court said, "You had a duty under the Act of 1949, our School Code, you had an obligation. You didn't have to be warned. You didn't have to have a regulation. You didn't have to have an ordinance such as Garner. You had a school code which defines the basis upon which tenure could be severed. And when you didn't cooperate in this case by answering the first question which we hold to be pertinent, you have put us in a position where we have no alternative other than to find you incompetent.
Charles E. Whittaker: Mr. Rhoads, do you believe that the fact that the Communist Party was lawfully on the ballot in 1944, has any real significance here?
C. Brewster Rhoads: Not at all.
Charles E. Whittaker: Now suppose just for an example that it was there fraudulently and its true colors were later determined. Might it then not be highly relevant to determine whether or not one was or was not a member of it at a later time?
C. Brewster Rhoads: Well, that's precisely Mr. Justice Whittaker what the courts have said time and again that the reason for these questions and it was what was said in Garner. The pertinency of the question lies in the fact that you may have been an innocent member of the Communist Party or you may have been a knowing member of the Communist Party. But whatever the circumstances, we, the School District are entitled to know whether you ever were, whether it's Communist Political Association or Communist Party when at any time that membership ceased and the circumstances under which it did cease.
Charles E. Whittaker: Do you think that premise is a distinguishing basis for eliminating such question with respect to those who were still honorable like the Republican and Democratic Parties?
C. Brewster Rhoads: Possibly not, sir.
Charles E. Whittaker: Why?
C. Brewster Rhoads: Possibly not. I have felt the low to break into if you will what I considered -- conceived to be a little different situation and I've tried to answer the Chief Justice. It's -- it is difficult but coming to the pertinency, I still suggest to Your Honor, Mr. Justice Whittaker, that there might be some difference but that it would be a matter for judicial determination. Now --
Hugo L. Black: Are the teachers employed by contract?
C. Brewster Rhoads: Yes, sir. And all of these teachers, Mr. Justice Black, are under what is known as tenure by the Act of 1949, and that tenure can be terminated only by proper dismissal proceedings brought under the Act under the grounds of incompetency, persistent and willful, immoral intent, and persistent negligence, and so forth. There's specific causes and --
Hugo L. Black: As they were, it's a permanent contract?
C. Brewster Rhoads: It's a permanent contract, sir. And as has been held many times and has been held in this case tenure is an insulation to the teacher against the variabilities of political sword if you, will but never was it intended to be an insulation against fitness and therefore as in this case, we felt that what had happened here, we -- it was that this teacher found himself in the position of refusing to undertake with us a proper inquiry. Now, can that man be fit under the terms of our law or the proper definition of it?
Charles E. Whittaker: Was he discharged?
Earl Warren: If you could --
C. Brewster Rhoads: Was he discharged, sir?
Byron R. White: I asked --
Hugo L. Black: Have you consulted this Court's opinion in (Inaudible)
C. Brewster Rhoads: I must confess that I think I have not, sir. I don't -- we have not cited it in our brief Mr. Justice Black. We felt that the -- the controlling situation was Garner and Adler and that those cases were unaffected by Konigsberg or Slochower for reasons that seemed to us obvious and we have set them forth in our brief.
Felix Frankfurter: That's a -- whether that case (Inaudible) as it was described Mr. Carroll then, he said that, (Inaudible)
C. Brewster Rhoads: Well --
Felix Frankfurter: (Inaudible)
C. Brewster Rhoads: Oh, if you're asking --
Felix Frankfurter: (Voice Overlap) of the evidence in Pennsylvania bar or (Voice Overlap) --
C. Brewster Rhoads: If you're --
Felix Frankfurter: (Voice Overlap) of the local and therefore the bar --
C. Brewster Rhoads: I am not --
Felix Frankfurter: -- have taken that into account about the impairment of obligation of concept?
C. Brewster Rhoads: I am not --
Felix Frankfurter: (Voice Overlap) Mr. Carroll's reply.
C. Brewster Rhoads: I -- I would not -- if Your Honor asked me the question that Your Honor asked to Mr. Carroll, I'm afraid that I could not have concurred.
Felix Frankfurter: You would not.
C. Brewster Rhoads: Because it seems to me that if you have the contract as we admit we have here and where you have a legislative basis for changing the tenure, then it would seem to me to be violative of the contract if as to an existing contract, you then put in other reasons.
Felix Frankfurter: Oh, I take it that's the tenor of Justice Black's question.
C. Brewster Rhoads: Well --
Hugo L. Black: Was this an existing contract?
C. Brewster Rhoads: Oh, yes sir. This man was under --
Hugo L. Black: In the (Inaudible) case, I dissented and in the (Inaudible) case still that the tenure of this term could not be taken away by a State --
C. Brewster Rhoads: (Inaudible)
Hugo L. Black: Would -- would that deprive him of the -- of him of the right to be (Inaudible)
C. Brewster Rhoads: That -- that would have been my answer to Mr. Justice Frankfurter.
Hugo L. Black: That whether -- whether there were grounds for doing under the statute was a federal question rather than a (Inaudible)
C. Brewster Rhoads: Well, that is one of the issues that is -- will be presented to Your Honors here.We believe --
Felix Frankfurter: (Inaudible)
C. Brewster Rhoads: Oh, yes.
Felix Frankfurter: Ultimately a (Inaudible) question.
C. Brewster Rhoads: But, to answer Mr. Justice Black on that particular situation, I think that in this case, you will find that our contention and we believe it is sound, is that we have employed the proper ground for termination under the Act giving tenure so that we are not --
Hugo L. Black: You have employed --
C. Brewster Rhoads: Yes, sir.
Hugo L. Black: The word used is idea of incompetency?
C. Brewster Rhoads: Yes, sir. And --
Hugo L. Black: But in determining whether you have actually done this or whether the Court has stretched incompetence -- the state court has stretched incompetence beyond it's meaning under the (Inaudible) this question I suppose --
C. Brewster Rhoads: It -- it --
Hugo L. Black: -- for this Court, that would --
C. Brewster Rhoads: It -- it might very well be sir. I have contended sir, that under the Barsky case, that the interpretation of the Supreme Court here is controlling on Your Honors' decision. But nonetheless, it is clearly a question that is raised before Your Honors because obviously there's just been a -- under --
Hugo L. Black: A sham.
C. Brewster Rhoads: A sham.
Felix Frankfurter: Yes.
C. Brewster Rhoads: Why -- I -- I am sure that I would not be here and the School District wouldn't be arguing this case at the present for as the moment. May I plead guilty Mr. Chief Justice, members of the Court, to something that I hate to admit in an appellate argument but there is a case which I would like to -- to which I would like your -- to refer Your Honors. It is the case of -- and it is not on my brief, it is the case of Davis against the University of Kansas City decided on April 15, 1955 by the now Mr. Justice Whittaker who was then a member of the District Court for the Western District of Missouri and it is 129 F.Supp., page 716. And I would not like to go into too much detail with reference to that case because it isn't on my brief, but I do think that it is very significant because on the facts it comes closer to the type of proceeding that we find in this case, that has any case which I have discovered. And I only -- I'm only happy with one thing in this confession and that is that apparently none of my friends have made a similar discovery. But in the Davis case --
Speaker: (Inaudible)
C. Brewster Rhoads: I'm sure, sir. In the Davis case, the school teacher who was a professor in the University of Kansas City was called before the general committee, he pled the Fifth Amendment and thereafter the authorities of the school -- of the university, first an educational committee similar to the one that Mr. Justice Frankfurter was suggesting and later on the Board of Trustees of the university asked Mr. Davis to come in before them and they propounded three certain questions that are referred to in the decision. They all had to do with membership in the Communist Party, membership in Communist activities or support of Communist organizations. He refused to answer his immediate superiors and later on was discharged. There was tenure in that case by contract. He was later on discharged. And when the matter came up before the Court on a petition for reinstatement, the question was squarely presented and the Court in that case said and I would just like to quote briefly that the public will not stand and they ought not to stand for such reticence or refusals to answer by the teachers in their schools. And the university officials would have been derelict in their duties had they not asked the plaintiff in the light of his refusal to answer the Senate Subcommittee's questions as to whether he was a Communist, whether he was or ever had been a member of the Communist Party. And having asked him those questions that he have been refused to answer them would have been derelict in their duties and would have destroyed the university had they not dismissed him. Now, the significance of that case to me if Your Honors please is that in view of the language of this Court in Slochower where Garner was still referred to when Your Honors said it doesn't follow that in a proper inquiry, Dr. Slochower may not prove himself to be not in the proper service of the State. Now here, what happened was that the man was brought back before a proper committee, an informal committee of this university and there it was held that they have the right to ask the questions and that it was his duty to answer and his failure to answer would justify the dismissal.
Speaker: Before the state authorities as I understand it in this particular case is that some others are coming along, there's no Fifth Amendment question raised here?
C. Brewster Rhoads: There's no Fifth Amendment question raised here, so that we believe is completely out of face by the decisions --
Speaker: That's the way I understood it.
C. Brewster Rhoads: -- of the Supreme Court of Pennsylvania.
Charles E. Whittaker: Now, there are two differences between this case and the Davis case as I see it. One is that in the Davis case, the responsible officials of the university called Dr. Davis in and asked him to answer to them whether or not he was or ever had been a member of the Communist Party. That's number one. Number two, no statute was involved but only the tenure contract and the question of whether or not he was dischargeable depended upon whether or not there was, "adequate cause", isn't that right?
C. Brewster Rhoads: That is --
Charles E. Whittaker: Those are two distinctions.
C. Brewster Rhoads: (Inaudible) discharged in that case sir, and incompetency was equated to the failure to discharge under a decision by our Court in this case. Now, as to the first question, may I reply very briefly, sir? It seems to me that there is some misapprehension sir, on Your Honors' part about what happened here as to whether Beilan was asked the question before the Board.
Charles E. Whittaker: Yes.
C. Brewster Rhoads: Beilan was not asked that question before the Board. The Superintendent, we're dealing now with due process, I take it. The Superintendent called him in twice on a professional inquiry. It was then that the refusal took place. Then sir, under the code, the charges were filed, formal charges, charge of incompetence by reason of his refusal to answer. The evidence in the hearing before the Board was Mr. Hoyer -- Mr. Hoyer, the Superintendent, stepping up in the witness stand and say, this was what happened. "I called him in. He didn't answer." That was the testimony before the School Board. Mr. Carroll was there representing Mr. Beilan. Mr. Beilan was present. He had an opportunity to testify. He didn't testify. It wasn't our job before this -- before the Board of Public Education, Mr. Justice Whittaker. We then have charges before us and those charges were based upon the refusal to answer the Superintendent, Beilan was there, he didn't take the stand, he didn't explain anything other than what was already in the record. But there were formal charges, every single step, Mr. Justice Whittaker that was provided under the code as to hearing, counsel. He was even given a private hearing of his own request under the Code, an opportunity to cross-examine they're appeals and so forth.
Speaker: I suppose you wouldn't dispute Mr. Carroll's statement that the thing that sparked this eventual proceeding before the Board of Education was the Un-American Activities Committee activity?
C. Brewster Rhoads: Mr. Justice Harlan, I would not dispute the fact that that sparked it.
Speaker: (Voice Overlap) --
C. Brewster Rhoads: I think he used that expression. I would dispute not only what the court below said but what Mr. Carroll has frequently said that this was a subterfuge incompetency. The fact to the matter as long as we're going somewhat out of the record, the fact of the matter was that I, as counsel for the School Board, as early as January of 1953, some six, seven, or eight months before the advent of the congressional committee was asked for my opinion, not only on this case but on as Mr. Carroll said, other cases which had taken a great leave of time to process. And as early as March 1, I think it was then or in that area, I rendered an opinion to my client to the effect that the failure to answer the Superintendent's question under the circumstances of this case, they haven't changed, constituted incompetence. So that from the point of view of the School Board, there was no afterthought, there was no subterfuge. I must answer Mr. Justice Harlan frankly and intellectually Your Honors, when the (Inaudible) Committee did come to Philadelphia, one might use the vernacular that the matter, the -- the fact was in the fire, the time was there and it is true. So I do not dispute the statement as such but I did think Your Honor should know that this was not an act --
Earl Warren: Why then -- why then did they wait all of that time from or the time you gave them the opinion that it constituted incompetence until the next November --
C. Brewster Rhoads: Oh, no.
Earl Warren: -- continuing -- continuing to give him a satisfactory report each month on -- on compentency?
C. Brewster Rhoads: I think sir, I can answer that only by the very practical knowledge that all of Your Honors have in matters pertaining to public bodies. That opinion was rendered and I think Your Honors can well understand in a matter of that -- in a matter of this gravity which involved tremendous questions of policy, that question was not settled promptly. The summer came along and it was in the Harper, may I say within weeks at the time that the congressional committee came. The time if Your Honor -- Mr. Chief Justice Warren, the time between the first interview with the Superintendent and the final bringing of charges which was some 13 months was accounted for by the fact that we had some as Mr. Carroll has said, some 32 of these cases in which we felt that we wanted to keep everything as quiet from the point of view of the teachers and everyone else as possible and the processing of those case as Your Honors could well understand was a matter of considerable physical as well as time effort. Now, I believe if Your Honors please, that I have taken my time and the question of due process which has been raised, I think I have covered here. The question of the lack of statutory authority, I believe, is completely out of this case because we are urging here that what happened in the Supreme Court of Pennsylvania was nothing more than the judicial process with which we're thoroughly familiar that of a state court interpreting general language in its own acts and that's what happened here. So far as the disloyalty situation is concerned with which we have been hounded from the start of this case, I only ask Your Honors, rather than have me read any sections, to read carefully what the Supreme Court of Pennsylvania says which is, "In words of one so that this is not a loyalty proceeding. Disloyalty wasn't charged and therefore to pick an Act, the Loyalty Act was not employed." And then I respectfully go from there sir, and say that that decision was a decision from the Supreme Court of Pennsylvania in determining which of two of its -- let us say, possibly alternative acts should apply and it said, no uncertain language that we're not dealing with disloyalty, we didn't charge disloyalty, and I will ask Your Honors to read carefully the notation on the footnote of the record in my brief where I refer to what Mr. Carroll said when he agreed with me in the hearings before the Board that this is not a loyalty proceeding and I don't intend to have it made such.
Felix Frankfurter: Mr. Rhoads, may I ask you this question. Are there as a matter of record, I don't mean in this record, but as a matter of record, a proceeding before your Board of Education whether they have or have not come into Court, it's -- where similar -- where questions of a nature such as were put to the petition, were in fact and by teaching, and words that -- and answered in the affirmative whether they were members of the Communist Party when they asked them, and dismissal followed?
C. Brewster Rhoads: No, sir.
Felix Frankfurter: Are the basis (Inaudible) Are there situations where they did -- did ask?
C. Brewster Rhoads: There were. There were some six or seven cases sir. And I very much regret it that I had to call Mr. Carroll's attention to what I think was an inadvertent misstatement when he said that there were those who had been fired, who had answered questions. That is an error. There are some six I believe, or five, I've forgotten which who have specifically answered the Superintendent's questions.
Felix Frankfurter: Admitted in answer. Admitted then?
C. Brewster Rhoads: No, sir. I -- I cannot --
Felix Frankfurter: Denied, of course it's been denied then there's no problem?
C. Brewster Rhoads: Well, the -- no. I -- there was no case, Mr. Justice Frankfurter, that I know of in which there was a -- an admitted membership presently in the Communist Party.
Felix Frankfurter: No. All in the past?
C. Brewster Rhoads: There were in the past and in those cases sir when the Superintendent satisfied himself of the genuine good faith of the teacher in response to that professional inquiry, I say categorically sir, those teachers are still on our payroll and they are still -- we verily believe are good teachers.
Felix Frankfurter: Are those instances matters of educational record?
C. Brewster Rhoads: No, sir.
Felix Frankfurter: They're just in there?
C. Brewster Rhoads: When I say educational record --
Felix Frankfurter: What I mean, are they -- are they --are there documents pertaining to those?
C. Brewster Rhoads: No, sir. I think -- if I should find that there are sir, I will of course advise Your Honor. But my recollection is that they were entirely in the nature of private professional interviews and therefore did not at any time arise to the dignity of a transcript --
Felix Frankfurter: You, as counsel of the Board, telling --
C. Brewster Rhoads: Yes.
Felix Frankfurter: -- that that is so.
C. Brewster Rhoads: I do, sir. And --
Hugo L. Black: But they happened when?
C. Brewster Rhoads: They happened at or about the same time Mr. Justice Black when all of these --
Hugo L. Black: What year?
C. Brewster Rhoads: In 1953, 1952 and 1953. They were part of the group of -- what I have just defined as some 32 school teachers. And I so state sir, and I am -- I had not -- I did not have to do with those particular cases but the Administrative Office of the School District has advised me that that is the fact.
Felix Frankfurter: Is there an annual report of the Board of Education?
C. Brewster Rhoads: Yes sir.
Felix Frankfurter: And in that report, would there be references to --
C. Brewster Rhoads: To those?
Felix Frankfurter: -- the inquiries into alleged incompetent in the (Inaudible)
C. Brewster Rhoads: I -- I think sir, vthat until these cases reach the formal hearing stage and charges, there was nothing in the record as Your Honor has interrogated. In other words, I know there is nothing about merely the inquiry.
Felix Frankfurter: Mr. Rhoads, I don't put a (Inaudible) of the question.
C. Brewster Rhoads: Oh, thank you so much. I --
Speaker: Mr. Rhoads --
Felix Frankfurter: With whole confidence in your statement, it's not (Inaudible)
Speaker: And thank you very much Your Honors.
Earl Warren: Mr. Carroll.
John Rogers Carroll: If Your Honors please. Since it has been mentioned, I perhaps should elucidate a little bit on that question of the availability of records of what happened. There are pending in the Courts of Common Pleas of Philadelphia right now 25 cases similar to this. In all of them, there are records of proceedings before the Board of Education in which Dr. Hoyer testified as to the gist of his interviews with the teachers, so that those things are matters of record on the appeal.
Felix Frankfurter: If I understand it, the 25 cases in which questions like these were put and teachers refused to answer and they were dismissed.
John Rogers Carroll: Right, sir. And those transcripts are now in the Courts of Common Pleas of Philadelphia.
Felix Frankfurter: Yes, but as to the five or six which Mr. Rhoads referred, they -- I suppose though, from my point of view, I'd imagine in the right mind, the School Board wouldn't make any (Inaudible)
John Rogers Carroll: I would think so Your Honor. I have no doubt that there are such cases that teachers who fully and frankly and supinely confessed everything that Mr. Hoyer --
Felix Frankfurter: Is that your finding?
John Rogers Carroll: I did, sir.
Felix Frankfurter: Why do you say that?
John Rogers Carroll: Because I think that what they want from these teachers is the demonstration of an attitude of complacent agreement with everything the Board wants whether if the inquiry is about -- has loyalty or --
Felix Frankfurter: I mean if --
John Rogers Carroll: -- about the Republican Party.
Felix Frankfurter: But then it just means that you cannot very well search the concept of those who did answer.
John Rogers Carroll: True sir. But may I say also that there are cases which are among those pending in the courts in Philadelphia in which teachers did answer Dr. Hoyer and were nevertheless fired simply because they pleaded the Fifth Amendment. In one case, a woman whose case is now pending in the Court of Appeals in this district, plead the First Amendment and was nevertheless fired for pleading the Fifth. There is no consistency among those decisions.
Earl Warren: You mean the Fifth, they pleaded the Fifth Amendment before the congressional committee?
John Rogers Carroll: Right.
Earl Warren: And then the Philadelphia Court fired them for that alone?
John Rogers Carroll: That's right.
Felix Frankfurter: You mean the Slochower situation?
John Rogers Carroll: That's right. And there are such cases pending. There are also among such cases, cases in which teachers in their hearings before the Board offered to testify in answer to any question similar to those that they had previously refused to answer when asked by the Superintendent. They too were fired. And those cases are now pending before the Court.
Felix Frankfurter: Your enumeration cases makes it even clearer to mean that we better decide this case.
John Rogers Carroll: [Laughs] Otherwise Your Honors would be certain to be troubled with more petitions. I should like to answer the question that Mr. Justice Frankfurter put to Mr. Rhoads and suggested, I might answer it. I understand that courteously it is that of a Superintendent or someone in authority in a school system who having heard rumors about a school being infested with Communist --
Felix Frankfurter: But I didn't say rumors. I'm giving a real practical concern of some knowledge in this matter with school authorities who were worried about by hearing a sufficient number of (Inaudible).
John Rogers Carroll: Right.
Felix Frankfurter: And through -- would fix -- he could've laid this worries if the facts were known because the interview, it wouldn't be true that the school is infested by communist or I might give a hypothetical case that all the teachers -- and those teachers in a school in a particular New York district are all members of the (Inaudible) organization.
John Rogers Carroll: And I take it, for that purpose, he makes inquiries similar to those made here. I say sir, that that only changes his motivation and does not alter the fact that his question invades their rights under the First and Fourteenth Amendment.
Felix Frankfurter: That is, if they have right. It bears on the relevance of the question. That's the purpose of my question.
John Rogers Carroll: I think sir, that your case presents perhaps a little more evidence of pertinency to a legitimate governmental interest than this one. But in any event, I should add that this record shows, I specifically asked Dr. Hoyer if he had any complaints about things like that, his answer was no. Now, the Chief Justice's questions and those of Mr. Justice -- Justice Brennan, I think have indicated that the definition of incompetency which the Supreme Court of Pennsylvania has adopted in this case is just so broad as to encompass almost the whole world but whatever it does, the distinction in Mr. Rhoads answer between the Communist Party and the Republican Party indicates that in considering refusals to answer, the Board makes the intermediate inference through loyalty in order to arrive at incompetency. I think that that is inescapable in the opinion of the Supreme Court of Pennsylvania and in Mr. Rhoads' answers to Your Honors' questions. Now, on the procedural due process question, I have previously argued that because the interest wasn't loyalty, he was entitled to a hearing on loyalty. I go one step further that whatever the interest was, this teacher having been fired for refusing to answer questions about loyalty was thereby branded with what Mr. Justice Frankfurter has called a stigma of disloyalty. I think that the firing under a stigma of disloyalty is as clear here as it was in the Wieman case where he was fired for refusing to answer and in Slochower. That I say, requires a hearing on loyalty. Thanks very kindly Your Honor.