State ex rel. Wasilewski v. Board of School Directors of City of Milwaukee

• Decision Date: 03 October 1961
• Citation: 14 Wis.2d 243,111 N.W.2d 198
• Parties: STATE ex rel. Edwin M. WASILEWSKI, Appellant, v. BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE, Respondent.
• Court: Wisconsin Supreme Court

Page 198

111 N.W.2d 198

14 Wis.2d 243

STATE ex rel. Edwin M. WASILEWSKI, Appellant, v. BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE, Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1961.

Certiorari by the relator, Edwin M. Wasilewski, to review his discharge as a teacher in the Milwaukee public schools by the defendant Board of School Directors of the City of Milwaukee (hereinafter referred to as the 'board').

Relator was born in 1925 and was graduated from one of the public high schools in Milwaukee. At the age of seventeen he enrolled in the University of Chicago. After completing one year of work there, he enlisted in the United States Army and was sent to Officers Training School at Fort Benning, Georgia. Upon completion of such training he was commissioned a second lieutenant in the infantry and thereafter served in the Army of Occupation in Japan. Following his discharge in 1946 he entered the University of Wisconsin. After receiving his Bachelor of Science degree from such university, he entered its graduate school and, one year later, was awarded his Master of Science degree in history. The ensuing four years were spent in New York city, part of which time he worked in the entertainment field. The last year and a half he attended Columbia University taking courses toward a doctorate degree in education. Two of these courses dealt extensively with sex education.

In 1955, relator returned to Milwaukee and was employed by defendant board for a year as a substitute teacher in the city's high schools. The following year he was appointed to teach in Bay View High School. Later he was transferred successively to Solomon Juneau High School and to the Boys' Trade and Technical High School (hereinafter referred to as 'Boys' Tech'). He taught at Boys' Tech from September, 1959, until his suspension in May of 1960. There is no dispute that by the time he commenced teaching at Boys' Tech he had acquired tenure status, inasmuch as he had then completed the three year probation period prescribed in sec. 38.24(18), Stats.

His assignment at Boys' Tech was to teach three ninth grade English classes and two twelfth grade speech classes. In addition, as extra curricular activities, he coached dramatics and golf. As a result of his work in dramatics, the students produced two successful school plays for which relator was highly commended by the school principal, Gilbert J. Jautz. Relator also volunteered to, and did, teach a course in the Russian language after regular school hours.

On or about April 2, 1960, Harold S. Vincent, superintendent of schools of the city of Milwaukee, commenced an investigation of certain activities of the relator which had occurred in his twelfth grade speech classes. Such investigation was the result of a complaint made by Gary Koeske, a seventeen year old student in one of relator's speech classes. The apparent gist of the complaint was that relator had discussed matters dealing with sex in such class in an improper manner. In investigating the matter, Vincent conferred with Jautz and together they interviewed Koeske and his parents at the Koeske home. Vincent also conferred with two members of the defendant board, one of whom had also received certain complaints against relator, and talked to some of the boys enrolled in relator's speech classes. Relator was not apprised that an investigation was in progress.

Vincent concluded the investigation with a conference, on May 9, 1960, in Jautz's office with Jautz and the relator. The superintendent questioned relator with respect to certain of the complaints dealing with the latter's discussions of sex in his speech classes, and relator made certain admissions in response to these questions.

Among these admissions, as testified to by Vincent, were the following: (1) Relator had discussed houses of prostitution in one of his speech classes, including the range of prices charged by such houses. During the course of this discussion relator had gone from desk to desk in the classroom and, after estimating the apparent age of each student, had indicated whether or not he thought the pupil would be admitted to a house of prostitution. (2) The sex act of breaking the hymen of a female had been discussed in class in some detail in such a way as to give the students the impression that relator was recounting a personal experience. However, relator explained to Vincent that in reality it was not a personal experience, but that he had created that impression for purposes of emphasis. (3) Pre-marital sexual relations had also been discussed in class by relator in such a way as to give the students the impression that he believed in this practice subject to certain limitations, such as where it offended the religious beliefs of the parties.

After hearing these admissions, Vincent handed relator a written notice temporarily suspending him as a teacher without pay pursuant to sec. 3.43 of the rules of the board. This rule authorizes the superintendent to temporarily suspend a teacher in an emergency without pay. The board's Committee on Appointment and Instruction subsequently recommended that relator be discharged and that the superintendent be authorized and directed to prepare and present charges against him. Pursuant to sec. 38.24(18), Stats., and to action taken upon this recommendation by the board at its meeting of June 7, 1960, Vincent drafted written charges against relator and caused them to be served upon him.

Relator was thereby charged with 'inefficiency and lack of good behavior' in the following respects '1. That during the early part of the second semester of the 1950-1960 school year, while assigned as a teacher of English and Public Speaking at the Boys' Trade and Technical High School, he improperly used class time scheduled for instruction in Public Speaking for discoursing upon and discussing prostitution, sexual activity, pre-marital relations and abortion.

'2. That in discoursing upon and discussing prostitution, he did, among other things, the following:

'a. He explained the operation of houses of prostitution including the range of prices charged for services rendered.

'b. He walked from desk to desk in the classroom and after estimating each pupil's apparent age, stated whether or not he thought the pupil would be admitted at a house of prostitution.

'3. That in discoursing upon and discussing sexual activity, he did, among other things, the following:

'a. He explained in detail the sex act involving the 'breaking of the hymen.'

'b. He described the position to be assumed by the woman in order that the hymen might be penetrated.

'c. The entire sex act of 'breaking the humen' was described as a personal experience of the teacher.

'4. That in discoursing upon and discussing 'pre-marital relations,' he did, among other things, the following:

'a. He conveyed the idea to the class that, subject to some limitations, he believed in 'pre-marital relations.'

'b. He indicated that sometimes 'pre-marital relations' would need to be limited by reason of religious beliefs.

'c. He indicated that in some individual cases, 'pre-marital relations' might not be acceptable.

'5. That in discoursing upon and discussing abortion, he did, among other things, the following:

'a. He scheduled a class debate on the subject of 'Legalized Abortion.'

'b. He had the class vote on 'Legalized Abortion."

Relator submitted a written request to the board that he be accorded a hearing on the charges. Such a hearing was conducted by the board, acting as a committee of the whole, on June 27, 28, and 29, 1960. At the hearing, numerous witnesses were examined and their testimony recorded in shorthand by a reporter. The board was represented by Carl F. Kinnel, an assistant city attorney, who acted in the capacity of prosecutor, and relator was represented by Attorney David Uelmen. All fifteen members of the board were present.

Subsequent to the hearing, briefs were filed by both counsel and the testimony was transcribed. The board requested Kinnel to prepare and submit findings of fact and conclusions of law. This was done by Kinnel without making a copy available to relator's counsel prior to the board's action thereon at its meeting of September 6, 1960.

There were thirteen board members present at this meeting. The findings of fact and conclusions of law were adopted by the board, eleven members voting in favor of adoption and two merely voting 'present.' All thirteen members there present signed the findings and conclusions, and the same were then served upon counsel for the relator. These findings and conclusions read as follows:

'Findings of Fact

'1. That Edwin M. Wasilewski was appointed to the teaching staff of the Milwaukee Public Schools as of September, 1956.

'2. That as of September, 1959, Mr. Wasilewski was transferred from the staff of the Solomon Juneau High School to the staff of the Boys' Trade and Technical High School.

'3. That during the second semester of the 1959-1960 school year, Mr. Wasilewski's classroom teaching assignment at the Boys' Trade and Technical High School consisted of three classes of 9A English and two classes of 12A Speech.

'4. That during the second semester of the 1959-1960 school year, Mr. Wasilewski served as the teacher of the classes referred to above until May 9, 1960, when he was temporarily suspended from such duties by the Superintendent of Schools in conformity with Section 3.43 of the Rules of the Board of School Directors.

'5. That the Teacher's Certificate issued to Mr. Wasilewski by the State Department of Public Instruction of the State of Wisconsin authorizes him to teach in the fields of History, English and Speech.

'6. That during the second semester of the 1959-1960 school year, a substantial number of the class periods scheduled for instruction in 12A Speech were used in whole or in party by Mr. Wasilewski for discoursing upon and discussing various aspects of sex.

'7. That such...