DeCanio v. School Committee of Boston

• Decision Date: 03 July 1970
• Citation: 358 Mass. 116,260 N.E.2d 676
• Parties: Anne DeCANIO et al. 1 v. SCHOOL COMMITTEE OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 676

260 N.E.2d 676

358 Mass. 116

Anne DeCANIO et al. ¹ v. SCHOOL COMMITTEE OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1970.

Decided July 3, 1970.

Lawrence D. Shubow, Boston, for Sandra Fenton and others.

Michael L. Altman, Boston, for Anne DeCanio and others.

Gerard A. Powers, Asst. Corporation Counsel, for School Committee of Boston.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.

KIRK, Justice.

This is a bill for declaratory relief under G.L. c. 231A brought by six public school-teachers in Boston against the school committee. The bill contains prayers requesting that the dismissal of the plaintiffs by the school committee be vacated, that the court declare 'the rights, duties and status of the * * * (plaintiffs) as employees of the Boston School System,' and for other equitable relief. The plaintiffs appealed from what was in effect an order for decree.

The basic facts of the dispute are these. The six plaintiffs were employed by the school committee as teachers in the Boston public schools for the school year beginning September 1, 1968, and ending August 31, 1969. None of the plaintiffs was serving 'at discretion' (i.e. 'on tenure') as that term is defined in G.L. c. 71, § 41. Each of the six was assigned to the Christopher Gibson School (Gibson School), an elementary school in the Dorchester district of Boston. The number of pupils registered at the Gibson School for that year was approximately 400, of whom over ninety per cent were of the black race. The Gibson School had become the focal point of a controversy concerning the extent of direct community participation or control which should be exercised or allowed in the schools. On September 4, 1968, the first day of classes, a demonstration took place at the Gibson School, in which various persons not connected with the school (except that some appear to have been parents of children in the school) entered the school building and each classroom, claiming to be the new principal and school staff. On the next day, September 5, the demonstrators returned. Police had been stationed at the door of the school to prevent the entry of unauthorized persons. Some of the demonstrators went behind the school to the yard where the children were being assembled for the start of classes, and announced that there would be no school that day at the Gibson School. Almost all the children were then led by the demonstrators to the Robert Gould Shaw House, a community center. The six plaintiffs, without informing, consulting with, or obtaining the consent of the superiors at the school, accompanied the demonstrators and the children to the Shaw House (described as a 'liberation school') and conducted their classes there for the entire day.

The plaintiffs reported to the Gibson School on the next morning, September 6, but were refused admittance. They were informed that they had been suspended for seven days by the superintendent of schools for unauthorized absence on September 5. ² The plaintiffs continued to teach at the Shaw House, where a considerable number of students from the Gibson School were still being taught.

On September 6, the school committee notified the plaintiffs of a hearing 'on your suspension' to be held on September 11. No additional notice of charges against the plaintiffs was given. The plaintiffs, who were represented by counsel at the September 11 hearing, requested a continuance and a public hearing. The committee voted to terminate the plaintiffs' contracts effective thirty days after delivery of notice, and to suspend the plaintiffs for those thirty days for 'conduct unbecoming teachers.' The committee also voted to give the plaintiffs a closed hearing on September 25. The plaintiffs declined to attend that hearing and instead instituted this suit. The judge ruled that the plaintiffs, as probationary teachers not serving at the discretion of the school committee, had no statutory or constitutional right to a hearing. ³ The order for decree declared that the plaintiffs 'were properly and lawfully dismissed from their employment as teachers by the * * * School Committee * * * on September 11, 1968, and are not entitled to reinstatement as teachers in the School Department of the City of Boston.'

1. We are faced at the outset with a jurisdictional question not raised by the parties. No final decree was entered in the Superior Court. It is settled that an appeal from an order for decree has no standing. G.L. c. 214, § 19. Carilli v. Hersey, 303 Mass. 82, 87, 20 N.E.2d 492; Moodie v. Jenks, 326 Mass. 332, 108 N.E.2d 558; Galvin v. Bay State Harness Horse Racing & Breeding Assn., Inc., 343 Mass. 520, 522, 179 N.E.2d 819. See George R. Whitten, Jr., Inc. v. County Com'r of Essex, 352 Mass. 579, 580--581 E.2d 347. Since no bill of exceptions was filed or allowed, the plaintiffs' exceptions are not open to review. G.L. c. 231, § 113. Sullivan v. Roche, 257 Mass. 166, 170, 153 N.E. 549; Bourget v. Holmes, 297 Mass. 25, 26, 27, 8 N.E.2d 356; Joyce v. Hickey, 337 Mass. 118, 119, 147 N.E.2d 187. The issues, however, have been fully argued. There are presented questions of great importance both to the plaintiffs, who understandably desire a speedy determination of their status, and to the public. We therefore deem it advisable to express our opinion on the issues. See Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220; Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 415, 221 N.E.2d 756; Metropolitan Dist. Comm. v. Department of Pub. Util., 352 Mass. 18, 27, 224 N.E.2d 502; City Manager of Medford v. State Labor Relations Comm., 353 Mass. 519, 524, 233 N.E.2d 310; Beaton, Petitioner, 354 Mass. 670, 672, 241 N.E.2d 845.

2. The plaintiffs' first contention is that they were entitled to a hearing on their suspension and dismissal under the provisions of G.L. c. 71, § 41, as amended through St.1956, c. 132, § 1, which provides in relevant part: 'Every school committee, in electing a teacher or superintendent, who has served in its public schools for the three previous consecutive school years, * * * shall employ him to serve at its discretion * * *.' A teacher or superintendent not serving at discretion shall be notified in writing on or before April fifteenth whenever such person is not to be employed for the following school year. Unless said notice is given as herein provided, a teacher or superintendent not serving at discretion shall be deemed to be appointed for the following school year.' The plaintiffs argue that the last two sentences of § 41 establish a special status for teachers who are 'not serving at discretion' but are 'deemed to be appointed for the following school year.' Each of the plaintiffs had been employed by the school committee in the previous school year. None was notified by April 15, 1968, that she was not to be employed for the next school year. The plaintiffs argue that, since they were 'deemed to * * * (have been) appointed' for the 1968--1969 school year, the school committee did not have the authority to suspend or discharge them summarily.

The plaintiffs' argument lacks merit. It was long 'the law that a school committee could discharge a teacher at any time. St.1844, c. 32; Knowles v. City of Boston, 12 Gray, 339. The changes made by * * * (G.L. c. 71, §§ 41, 42) in securing permanency of tenure and requiring certain procedure for a valid discharge relate only to teachers who are 'on tenure,' and do not apply to one employed for a single year.' Pulvino v. Town of Yarmouth, 286 Mass. 21, 24, 189 N.E. 599, 600. See Nester v. School Committee of Fall River, 318 Mass. 538, 62 N.E.2d 664. The last sentence of § 41 was added by St.1953, c. 372. That sentence does not purport to grant any new rights to a hearing, or to establish any intermediary status between 'tenure' and 'nontenure' teachers. It provides merely that the absence of notice to the contrary by April 15 constitutes an election (see G.L. c. 71, § 38) of the teacher for the following year. When taken together with the preceding sentence, its effect is to relieve the school committee of the burden of notifying every nontenure teacher of his reappointment, and also to afford those teachers who are not reappointed adequate opportunity to make plans. There is no express abridgment of the power of the school committee to dismiss or suspend during the school year a teacher who has been elected but is not serving 'at discretion.' 'Where in the past the Legislature was limited the powers of school committees it has done so in express terms (G.L. (Ter.Ed.) c. 71, §§ 38--45), and it is to be expected that a radical departure from such previously policy would be expressed in clear language and not left to doubtful implication.' Davis v. School Committee of Somerville, 307 Mass. 354, 363, 30 N.E.2d 401, 406. O'Donnell v. Norwood, 346 Mass. 394, 397, 193 N.E.2d 330.

3. The plaintiffs' principal contention is that their suspension and dismissal, without adequate notice of the charges against them and a prior hearing, deprived them of due process and equal protection of the laws. The gist of the argument is that a governmental agency may not constitutional discharge any employee, regardless of his probationary status, without first providing him an opportunity to be heard; and that G.L. c. 71, §§ 42 and 42D, which grant the right to a hearing on discharge or suspension only to teachers on tenure, deny probationary or nontenure teachers the equal protection of the laws.

The plaintiffs cite in support of their argument a number of cases which hold that before a regulatory agency may deny a person permission to engage in a lawful occupation the agency must afford that person the opportunity for a hearing. ⁴ We think those cases are inapposite. What is concerned here is not an 'interference with such persons' freedom of employment and business activity.' Milligan v. Board of...