Appeal of Albert

• Decision Date: 25 November 1952
• Docket Number: 7411
• Citation: 92 A.2d 663,372 Pa. 13
• Parties: Appeal of ALBERT.
• Court: Pennsylvania Supreme Court

92 A.2d 663

372 Pa. 13

Appeal of ALBERT.

No. 7411

Supreme Court of Pennsylvania

November 25, 1952

Argued September 30, 1952

Appeal, No. 77, March T., 1952, from decree of Court of Common Pleas of Allegheny County, April T., 1951, No. 1689 in Appeal of Dorothy Albert from the decision, order and ruling of Dr. Francis B. Haas, Superintendent of Public Instruction. Decree affirmed.

Appeal by teacher from dismissal by Board of Public Education.

Appeal dismissed and final order entered, opinion by ELLENBOGEN, J concurring opinion by NIXON, J. Teacher appealed.

The order of the court below dismissing the appeal of Dorothy Albert from the order of the Superintendent of Public Instruction is affirmed; appellant to pay the costs.

Osmond K. Fraenkel, of New York, with him William Allen Rahill and Thomas D. McBride, for appellant.

Mortimer B. Lesher, Solicitor, with him Niles Anderson, Assistant Solicitor and Oscar G. Peterson, for Board of Public Education of School District of Pittsburgh appellee.

Robert L. Kunzig , Deputy Attorney General, with him Robert E. Woodside, Attorney General, for Commonwealth of Pennsylvania, intervenor, appellee.

A Harry Levitan and Witt and Cammer, of New York, for Teachers Union, Local 555 and Local 556.

Before STERN, STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. HORACE STERN, CHIEF JUSTICE

Miss Dorothy Albert, a professional employe of the School District of Pittsburgh, taught English at the Taylor-Allderdice High School; she had been a teacher for approximately eighteen years. Dr. Earl A. Dimmick, Superintendent of Schools of Pittsburgh, preferred charges against her, alleging that she was a Communist; he requested that her contract of employment be terminated for "advocation of or participating in un-American or subversive doctrines" in violation of section 1122 of the Public School Code of 1949, P.L. 30. The Board of Public Education held a formal hearing at which extensive testimony was taken; Miss Albert was represented by counsel but she herself did not testify, nor did she present any testimony by other witnesses. As a result of the hearing the Board entered an order terminating her contract as a professional employe and discharging her as a teacher. She appealed to the Superintendent of Public Instruction, who, after hearing and argument, sustained the action of the Board. She then appealed to the Court of Common Pleas of Allegheny County but did not request in that court a hearing do novo to which she would have been entitled under section 1132(b) of the School Code had she demanded it. The court affirmed the action of the Superintendent and dismissed her appeal. From that order she now appeals to this court.

Section 1122 of the School Code enumerates the causes for the termination of a contract with a professional employe, and among them is listed "advocation of or participating in un-American or subversive doctrines". The Act of July 28, 1941, P.L. 530, had forbidden the employment in any capacity, by any agency of the Commonwealth or any county, city, borough, township or school district, of any person who thereafter should advocate or participate "by an overt act or acts in un-American or subversive doctrines"; any person so employed was to be dismissed in the same manner as provided by law for dismissals for other causes. The School Code omitted the words "by an overt act or acts ", thus apparently demanding a more rigorous standard of loyalty in respect to teachers than for other public employes. Appellant contended in the court below that the words "un-American or subversive doctrines" are vague an indefinite and that therefore this provision of the Code is unconstitutional and void. However, their connotation is no more uncertain than that of the other causes for termination of a contract with a professional employe enumerated in this same section of the Code, as, for example, "immorality", "incompetency", "cruelty", etc., for which causes dismissal of teachers have been frequently upheld by our courts. Exact definitions of such abstract terms are obviously quite impossible, but, as a practical matter, their application to specific situations does not involve any real difficulty. The Act of 1941, which was not repealed or impaired by the School Code, gave a general definition of the phrase as meaning "doctrines which teach or advocate the overthrow of the government of the United States or of the Commonwealth of Pennsylvania by revolution or the changing of the form of government of the United States or of the government of Pennsylvania by means not provided for in the Constitution of the United States or in the Constitution of the Commonwealth of Pennsylvania". ^[1] We conclude that there is no such ambiguity or obscurity in the terminology of section 1122 of the Code as would render it inoperative and incapable of judicial enforcement.

There is no question of the right of free speech involved in this case. Miss Albert is not being penalized in her capacity as a private citizen because of any political, economic or social views she may entertain or any expression she may care to give to those views. The concern here is with her rights as a teacher, and the legislature can certainly prescribe qualifications for teachers in the public schools with respect not only to their academic attainments but also to their moral characters and their loyalty to the state and federal governments. Judge (later Mr. Justice) HOLMES, in a characteristically epigrammatic phrase, said in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." To the same effect, Mr. Justice MINTON, speaking for the United States Supreme Court, said in Adler v. Board of Education of the City of New York, 342 U.S. 485, 492: "It is clear that such persons [employed or seeking employment in the public schools] have the right under our law to assemble, speak, think and believe as they will.... It is equally clear that they have no right to work for the State in the school system on their own terms.... If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not."

The Constitution of the Commonwealth, Article 10, Section 1, provides that "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools." Certainly our public school system is the most vital feature of our governmental and democratic system. In order to have such a "thorough and efficient system" those who teach in the public schools must be persons not only of learning and ability, of character and integrity, but they must be devoted to our country, its institutions and the basic principles upon which it was founded and hopefully will ever rest. Section 1511 of the School Code provides that in every elementary public and private school there shall be taught "civics, including loyalty to the State and National Government." How can such loyalty be taught if the teacher herself be disloyal? As was said in Thorp v. Board of Trustees of Schools for Industrial Education of Newark, 6 N.J. 498, 514, 79 A.2d 462, 470; "The school system affords the opportunity and means for subtle infiltration.... A teacher who is bereft of the essential quality of loyalty and devotion to his government and the fundamentals of our democratic society is lacking in a basic qualification for teaching." Children respect and look for guidance to their school teachers second only to their parents; their immature minds are influenced not only by what they are actually taught in the classroom but also by the personality of their teacher; the impressions they receive in school are bound to color their adult lives and to determine for them, as they advance into manhood and womanhood, whether they emerge as patriotic or as unfaithful citizens. In short, it is essential, in order to protect our children from treacherous influences, that persons who advocate or participate in subversive doctrines should not be employed, or if employed should not be retained, as teachers in our public schools, and any teacher dismissed for such a reason cannot properly claim that any constitutional or legal right is thereby violated.

According to the testimony before the Board of Public Education Miss Albert was, unquestionably, a member of the Communist Party. Her chief complaint, however, on this appeal, is that the Board not only took judicial notice of the fact that the Communist Party advocates the overthrow of the United States government by force and violence, but it refused to allow her to present testimony to the contrary. This court has definitely decided that judicial notice may be taken of the fact that the Communist Party is a subversive organization which conspires to teach and to advocate the overthrow of the government of the United States by force and violence: Milasinovich v. The Serbian Progressive Club Inc., 369 Pa. 26, 29, 84 A.2d 571, 573; Commonwealth v. Truitt, 369 Pa. 72, 81, 85 A.2d 425, 429; Matson v. Margiotti, 371 pa. 188, 193, 88 A.2d 892, 895; Pawell v. Unemployment Compensation Board of Review, 146 Pa.Super. 147, 150, 151, 22 A.2d 43, 45 (allocatur refused 146 Pa.Super. xxiii); (see also Schneiderman v. United States, 320 U.S. 118, 148, note 31). The doctrine of judicial notice is intended to avoid the necessity for the formal introduction of evidence in certain cases when there is no real need for it, -- where a fact is so well established as to be a matter of common knowledge. That the Communist Party...