Watts v. Seward School Bd., 427

Citation421 P.2d 586
Decision Date07 December 1966
Docket NumberNo. 427,427
PartiesJames A. WATTS and Walter B. Blue, Appellants, v. SEWARD SCHOOL BOARD and Board of Education, Appeal Hearing Committee, Appellees.
CourtSupreme Court of Alaska (US)

Joe P. Josephson, Josephson & Strachan, Anchorage, for appellants.

Warren W. Matthews, Jr., Burr, Boney & Pease, Anchorage, for appellees.


NESBETT, Chief Justice.

This case is before us for the second time.

In our Opinion No. 251 of September 21, 1964, 1 we upheld the action of appellee Seward School Board in refusing to renew appellants' teaching contracts in the Seward Public Schools for 1959-60 on the ground that appellants had engaged in immoral conduct within the statutory definition of that term in S.L.A.1957, chapter 71, section 2. 2 We noted in that opinion that although appellants had made the broad general claim in their brief that their constitutional rights to assemble and speak freely had been abridged and that they had been deprived of their personal liberties and property rights without due process of law, they had failed to treat the matters adequately in their briefs or to cite any case law in support thereof. Accordingly, we declined to attempt to pass on those points. 3

Appellants petitioned the United States Supreme Court for a writ of certiorari contending that their dismissal amounted to an unconstitutional infringement of their rights to political expression guaranteed by the First and Fourteenth Amendments to the United States Constitution.

Subsequent to the publication of our Opinion No. 251 the Alaska Legislature in 1965 enacted AS 14.20.095 providing that no rule or regulation of certain education officials may restrict or modify a teacher's right to comment and criticize public education officials, outside of school hours, to the same extent that a private individual might do so. 4 In addition, the Alaska Legislature in 1965 amended the statute which stated the causes for which a teacher's certificate might be revoked. Insofar as is pertinent this amendment simply added a definition of 'immorality', defining it as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude. 5 In its per curiam decision remanding the case, 6 the United States Supreme Court cited the decisions noted below which hold that supervening changes in state law that may be relevant to the disposition of a case may require that the cause be remanded for appropriate action by the state court, 7 and stated that it was granting certiorari for that purpose.

We have for our assistance in reconsidering the case, the original briefs submitted by the parties, as well as additional briefs submitted at the request of this court subsequent to remand. Also to be considered at this time is the fact that since the last briefs were filed herein and on the 15th day of April 1966, the Alaska Legislature enacted an amendment to AS 14.20.170(a)(2) redefining immorality as a ground for nonretention of a teacher as the commission of an act which, under the laws of the state, constitutes a crime involving moral turpitude. 8

In preparation for reconsideration of the case we requested that counsel brief the question of whether appellants' dismissal from their positions as school teachers infringed upon their rights to political expression guaranteed by the First and Fourteenth Amendments to the United States Constitution, as well as the effect on the case of the statutory changes mentioned by the United States Supreme Court in granting certiorari.

Counsel have obliged. In addition, appellants have requested that the appeal be considered de novo in the light of recent United States Supreme Court decisions. Appellee has again briefed and urged us to determine the question of whether the Seward School Board's conclusion that appellants had substantially failed to comply with Seward School Board Regulation E(7) was not a sufficient independent cause for their nonretention. Although this point was briefed and presented when this case was last before us, we found it unnecessary to consider it in view of the disposition then made of the case. We shall consider and pass on it in this decision.

In our reconsideration of the case it was eventually found necessary to order the record supplemented by the transcripts of the various proceedings had before the Seward School Board and the State Board of Education, Appeals Committee, as well as all of the exhibits received at those hearings. These transcripts were received late in May and the exhibits on June 10, 1966.

We shall consider first the effect subsequent statutory changes may have had upon our original holding that appellants' conduct was immoral within the meaning of Alaska's statute.

In order to consider this question in perspective it is necessary to first determine the type of conduct the legislature originally The use of the term by the legislature must be considered in context. When the facts of this case arose in 1959, SLA 1957, chapter 71, section 2, 9 listed and defined the three causes for which a teacher could be nonretained as:

intended to cover by its definition of 'immorality'.

(a) Incompetency-defined as the inabilityor failure to satisfactorily perform one's duties,

(b) Immorality-defined as 'conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect', and

(c) Substantial noncompliance with the school laws of the Territory or such regulations of the Territorial Board of Education.

Of the three causes for nonretention, 'incompetency' and 'substantial noncompliance' are reasonably specific. 'Immorality', on the other hand, is broad and covers any and all conduct of the teacher which tends to bring disgrace or disrespect upon the teacher or the teaching profession. This definition would include all conduct from the commission of the most heinous felony down the scale of infamy to social misbehavior. The point in a teacher's conduct beyond which his behavior would tend to bring disgrace or disrespect upon him or his profession, would be one of degree depending upon the rules of society and to some extent upon the mores of the particular community.

Since it does cover such a broad range of conduct, it seems quite likely that the Alaska Legislature originally intended that 'immorality' be a 'catch-all' cause for nonretention, intended to serve the same purpose as that mentioned in BEILAN V. BOARD OF PUBLIC EDUCATION WHERE THE UNITED STATES SUPREME COURT STATED IN 357 U.S. AT 406,10 78 S.Ct. at 1322, 2 L.Ed.2d at 1420:

However, the Pennsylvania statute, unlike those of many other States, contains no catch-all phrase, such as 'conduct unbecoming a teacher,' to cover disqualifying conduct not included within the more specific provisions. Consequently, the Pennsylvania courts have given 'incompetency' a broad interpretation.

In a footnote the court cited the 'catchall' provisions of the Kentucky statutes, as being 'conduct unbecoming a teacher' and 'during good behavior'; of Massachusetts as 'conduct unbecoming a teacher' and 'other good cause'; of California as 'evident unfitness for service' or 'unprofessional conduct'; of Illinois as 'other sufficient cause' and of Indiana as 'other good and just cause'. 11

The propriety of defining 'immorality' as the legislature did has been questioned indirectly by appellants in their briefs and directly by the Alaska Legislative Council in an annual report to the legislature. The Council pointed out that the removal of a teacher for immoral conduct has serious implications for the teacher and suggested amendment of the provision by substitution of a definition of 'immoral' in keeping with the commonly accepted sense of the term. 12

If the original intent of the Alaska Legislature in defining immorality as it did was to provide a 'catch-all' provision covering all types of conduct tending to bring public disgrace or disrespect upon the teacher or his profession, not covered by 'incompetency' and 'substantial noncompliance' with regulations, as seems likely, and it is desired to remove any possibility of unnecessary stigma from attaching by reason of the title of the provision, then it would seem that the reverse of the The use of the term 'immorality' is not new to legislation governing the teaching profession. In Appeal of Batrus 14 a statute provided that the only valid causes for termination of a teacher's contract were: immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement and persistent and wilful violation of school laws. The court held that where a teacher executed false affidavits, misrepresented and withheld important information from her employer she was guilty of

Legislative Council's recommendation should be followed. That is, the designation or title of immorality should be removed from the catch-all definition of conduct and a designation such as 'conduct unbecoming a teacher' be substituted. The definition would then cover immorality in all of its aspects, including all shades of unacceptable social misbehavior, and would continue to serve the useful purpose of a 'catch-all' cause which so many states have found to be a necessity in this area of legislation. 13

* * * 'such a course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and elevate' and therefore immoral. 15

In Negrich v. Dade County Bd. of Pub. Instruction 16 a teacher had made a false statement in his application for a teaching position and was suspended therefor seven years later. The court held that the conduct amounted to immorality since it '* * * offends the morals of the community and was inconsistent with moral rectitude'. 17 In our first opinion we mentioned Appeal of Schneider, 18 where the court said:


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