Kaplan v. Philadelphia School District

130 A.2d 672, 388 Pa. 213, 1957 Pa. LEXIS 447

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1957
• Docket: Appeal, 282
• Status: Published

Opinions

Opinion by

Me. Justice Musmanno,

On July 12, 1948, Samuel M. Kaplan, the plaintiff in this case, entered into a contract with the School District of Pennsylvania, the defendant, to teach English in the public schools of Philadelphia on a salary basis. So far as the record shows, he demonstrated himself to be a competent teacher in his field, but it was reported to the Superintendent of Philadelphia Schools that while Kaplan was instructing the children in his classes how to express themselves in English he was devoting time to an organization which, if successful in its plans, would eventually have those children or their children’s children speaking Russian in a Russian state. The organization was the Communist Party of Eastern Pennsylvania and Delaware, an integral part of the Communist Party of the United States, a branch of the international Communist conspiracy committed to world revolution in overturning democratic government and installing in its stead the so-called dictatorship of the proletariat.

On October 21, 1952, the Superintendent, Dr. Louis F. Hoyer, asked Samuel Kaplan if he was or had been an organizer of Section 12 of the Communist Party of Eastern Pennsylvania and Delaware. Kaplan replied: “I can’t discuss that with you.” The question was repeated several times and to each inquiry Kaplan parroted the same answer. On November 19, 1952, Kaplan was again summoned to the Superintendent’s office and once more questioned on the subject which had been the subject of their exchange a year before. Kaplan continued to refuse to enlighten the Superintendent in the matter, adding that he was acting under advice of counsel. In the meantime Kaplan had been called before a Congressional investigating committee where he declined to respond to questions put to him in the field of subversive activities. This persistent taciturnity on the part of Kaplan culminated in his suspension from duty on November 20, 1953, when he was informed that recommendation was being made to the Board of Education for his dismissal. A formal hearing followed, and, on January 7, 1951, the Board of Education permanently separated him from his teacher’s position. He appealed to the State Superintendent of Public Instruction who' affirmed the dismissal and he then appealed to the Court of Common Pleas. The issue raised in that appeal is not before us.

On February 1, 1951, the plaintiff Kaplan filed a complaint in assumpsit against the School District of Philadelphia, averring that he was entitled to his salary from November 20, 1953, the date of suspension, to January 7, 1954, the date of dismissal. The defendant denied liability, and the plaintiff moved for judgment on the pleadings. The Court below granted the motion and entered judgment in the amount of $914.74. The School District appealed to the Superior Court which reversed the judgment, and, on petition for allocatur, we allowed appeal to this Court. The importance of the question raised here, involving as it does an interpretation of the School Code, takes on additional significance in view of the fact that the claims of 30 other teachers, who were dismissed under circumstances similar to those which obtained in Kaplan’s case, will be decided by this “test” case.

The appellant, Samuel Kaplan, maintains that the Board of Education had no authority to suspend him, because Section 1124 of the Public School Code of 1949 (Act of March 10, 1949, P. L. 30, 24 P.S. 11-1124 et seq.) enumerates causes for suspension and his case does not come within any of them. In entering judgment for the appellant, the lower Court said: “Under the code suspension is permissible ‘only when there is (1) substantial decrease in pupil enrollment, (2) curtailment or alteration of the educational program, or (3) consolidation of schools, which makes it unnecessary to retain all of the professional employees. Act of 1949, supra, §1124, 24 PS 11-1124.’ ”

But Section 1124 does not contain the limiting adverb of “only.” Nor does the Act in any way limit the authority of the School Board to suspend for cause. It would be most extraordinary if it did. The lower Court cites the case of Intille v. Hoyer, 88 D. & C. 512. In that very case, Court of Common Pleas No. 5 of Philadelphia County, in rejecting the argument which is also being made by the appellant in this case, said: “But the act does not lend itself to the tortured construction advanced by plaintiff. Because a teacher passes certain qualifying grades, she is not automatically so secure in her position that if she commits some act detrimental to society or to the children placed in her charge, the superintendent of schools is powerless to dismiss the teacher pending a final hearing by the board of education. The act contains as a matter of course certain implied powers to control the activities of a member of the teaching staff in or out of the school itself.”

It must be as obvious as print can make it that Section 1124 of the School Code has absolutely no relevancy whatsoever to the circle of controversy of which the plaintiff here is the center. Section 1124 is confined to pedagogical overstaffing in schools, which of course is as far removed from the situation in this case as Budapest is from Leningrad. The suspension contemplated in Section 1124 is in the nature of an impermanent separation, it is in reality simply a furlotigh, it is a laying-off, it is a temporary discontinuance until conditions readjust. Suspension under Section 1124 envisages a re-hiring. The suspended teacher is released with no stigma, dishonor, or discredit. He is sent home with regret and with the anticipation of an early return.

But the Kaplan suspension is so utterly something else that comparison with Section 1124 is almost embarrassing. The suspension here involves incompetency, unfitness, and a disregard of the responsibility the plaintiff owed to his profession and the school system. Kaplan’s suspension has nothing to do with over-staffing of teachers, curtailment of educational program, or consolidation of schools. Kaplan’s suspension was one for cause, a cause which he, and he alone, created. Kaplan was suspended because of his refusal to cooperate with the school authorities, an offense which can only be productive of harm, disorganization, and chaos in any highly efficient enterprise employing multiple persons.

As we have seen, the teacher suspended under Section 1124 is expected to return, but the suspension predicated on unfitness is a one-way ticket. It is the prelude to permanent separation from service. It is a notice of dismissal proceedings. Furthermore, under Section 1124 the suspended employee still remains aboard the ship of professional status, but where unfitness is proved the employee is taken off the ship entirely.

The plaintiff maintains that the school authorities, had no right to take him off the ship, arguing that the only force available to put him ashore lies under Section 1124 which concededly gives no such power under the facts of this case. But the plaintiff’s argument runs fallacy from every porthole. It overlooks entirely the employer-employee relationship which exists between the school district and the plaintiff. The contract which he signed with the school district on July 12,1948, assured him a salary provided he worked. It did not guarantee compensation if he was idle as the result of a situation which he voluntarily brought about. The law of contracts is as constant as the law of gravitation. No one is entitled to anything from anybody without consideration. One may obtain gratuities, he may be favored with special attention, but when he goes to law to collect money he must prove that he gave something for that money or that he forewent some advantage which enured to the benefit of the person from whom he claims money.

The plaintiff not only did not work for the period between November 30, 1953 and January 7, 1954. A substitute was employed in his place. There is no authority under the School Code which permits payment to two persons for one position when the employment .of the substitute was made necessary because of the misbehavior of the original employee.

The question as to whether a suspended teacher is entitled to salary for the period between suspension and dismissal was considered in a California case, which we cite with approval. (Gentner v. Board of Education of Los Angeles, 219 Cal. 135.) There, as here, the teacher argued that under the teacher’s tenure law he could not be deprived of his salary until the final date of dismissal, even though he did not teach between suspension and dismissal. The Supreme Court of California held: “But in our view it is not an incident of such tenure that a teacher must be given active employment pending the conclusion of dismissal proceeding against him, or paid his full salary when it is determined upon hearing held that cause for removal existed .- . . The welfare of the children is the paramount consideration. It follows from the fact that the authorities are not required to give active employment to a teacher pending his removal hearing, that, when his removal is subsequently ordered, he is not entitled to receive salary for the period during which he has not taught. The law does not contemplate that public funds shall be expended where no services are performed, and where not only is there no duty to accept services tendered, but the welfare of the children may require that they be dispensed with until a hearing can be held.” (Emphasis supplied)

The Superintendent of Philadelphia Schools had not only the right but the duty to ask himself whether or not the welfare of the children in Kaplan’s classes would suffer from his continuing tutorship. When the Superintendent conscientiously answered that question in the affirmative he had no course open but to suspend Kaplan.

Of course, the plaintiff maintains that he was ready, able, and willing to work, and that it was not he who walked away from the school but that it was the Board of Education which closed the schoolhouse to him. In this respect the plaintiff devotes a great deal of argument to a proposition that no one disputes, namely, that the Superintendent of Schools may not suspend employees arbitrarily. The Superintendent did not suspend arbitrarily. He suspended because, according to his official cognizance, the plaintiff had become unfit and could become an influence inimical to the best welfare of the children. In the case of Walker v. Scranton School District, 338 Pa. 104, 109, this Court said: “The aim and object of our school system is to provide the best education for the children of the Commonwealth. It cannot be doubted that it was the intention of the Legislature to subordinate all other considerations.”

Anyone whose conduct is opposed to the aim and object of our school system in providing the best education for the children of the Commonwealth cannot possibly expect to remain employed as their teacher. Certainly, if it were established that a teacher had burned school books or had attempted to set fire to the schoolhouse itself, it could not be argued that he was immune from immediate suspension. Suppose it came to light that a teacher sold narcotics, could it be maintained with any semblance of reason and conscience that the school officials would have no authority to suspend him because Section 1124 of the School Code does not provide for suspension of dope peddlers?

The lower Court which granted judgment in favor of the plaintiff conceded that a teacher might so conduct himself that the authorities would be compelled to suspend him: “It would seem to be obvious that a teacher may be suspended from the performance of any duties under certain circumstances pending a hearing on charges of dismissal, as was held in Intille v. Hoyer, supra. Certainly if by reason of some immoral action or some definite indication of mental illness, it would be unsafe or improper to have the teacher con-duet classes or dangerous to his pupils that he should do so, the superintendent would be remiss if he did not remove him from the classes.” But after stating this very sound proposition the Court proceeded to a very unsound conclusion. After building an edifice of logic from cellar to garret, the Court roofed it with a non sequitur, namely, “But until the teacher has had the hearing provided for in the code, and there is a proper determination to dismiss him, his pay cannot be cut off.” This is to say that an employee may be removed from his position but that he may not be separated from his pay envelope.

But it is to be noted that the very hearing which the Court refers to has already taken place. In fact the Court acknowledged as much in its Opinion: “The code provides specifically for certain procedure, including notice and hearing before the Board, as a preliminary to dismissal. This procedure was taken here and plaintiff was dismissed on January 1,195J/.” (Emphasis supplied)

If the reasoning employed by the lower Court were translated into a syllogism, it might come to a rather startling conclusion: Major Premise: A teacher who is morally or mentally unfit has no right to teach. Minor Premise: The Superintendent under those circumstances has the right to remove him. Conclusion: Therefore, the teacher should receive pay for the services he does not and cannot render.

But the appellant goes even further than the lower Court. He argues that the School Code specifically provides that an employee must be paid during the period he is under suspension. In his brief, after outlining the procedure required by the Code in order to effectuate the dismissal of a teacher, he says: “This latter section (§1130) also provides that where the final decision is in favor of the professional employe that the charges shall be officially expunged from the records of the Board. The section concludes with the following sentence: ‘In all such cases there shall be no abatement of salary or compensation.’ . . . This sentence prevents the termination of salary even if done with the idea that it would be reimbursed if the charges were to fail. The requirement that there be no abatement is a requirement that salary be continued until dismissal. . . The section does not provide that, there be a reimbursement if there is no dismissal; it says there shall be no abatement of salary,” (Italics in brief).

But the appellant quoted only the last sentence of Section 1130. By omitting the first part of that section, a concept entirely different from what the Legislature intended and wrote was created. The whole section reads as follows: “In all cases where the final decision is in favor of the professional employe, the charges made shall be physically expunged from the records of the board of school directors but, a complete official transcript of the records of the hearing shall be delivered to the one against whom the charges were-made. In all such cases there shall be no abatement of salary or compensation.” (Emphasis supplied.) From this whole section, it is as clear as a first grade primer, that there shall be “no abatement of salary” only where the final decision “is in favor of the professional employe” which of course is .not true in Kaplan’s case.

In pointing out that the Superintendent of Schools was entirely justified in suspending Kaplan, the Superior Court, in an able Opinion written by Judge Woodside, said: “The term ‘education’ includes cultivation of morality as well as attainment of knowledge and intellectual culture.”

Further: “The children must be protected from the influence of an immoral or unfit teacher, and the inherent right to remove such teacher from the classroom forthwith, pending dismissal by the board, has not been denied by the teacher’s tenure law.”

The appellant, in his brief before this Court, takes issue with Judge Woodside’s statement just quoted, and argues: “The discussion in the opinion of the Superior Court as to the need to.protect children from the influence of an immoral or unfit teacher and ‘the inherent right to remove such teacher from the classroom forthwith,’ is therefore beside the point.” It is not beside the point. It is, in fact, the whole crux of the case. The competency of a teacher does not depend alone upon academic equipment. With technical qualifications for the position must also go character, moral fiber, loyalty to the freedom-loving institutions of the land, and respect for the glorious traditions of the teaching profession. Without these attributes, a teacher is but a speaking blackboard or a walking textbook. A teacher must not only teach, he must inspire the boys and girls who look to him, in addition to classroom instruction, for moral and inspirational guidance.

The Superintendent of Schools has the same right to suspend any teacher whose conduct may deleteriously influence school children as a hospital superintendent has the inherent right to suspend any employee whose conduct may adversely affect the recovery of a sick patient. It was Superintendent Hoyer’s duty to investigate the serious reports he had received on Samuel Kaplan. Accordingly, he asked Kaplan if it was true that he had been an organizer of the Communist Party.. From the whole encyclopedia of exculpation, the plaintiff was free to choose any answer he believed fitted the facts, to wit, that he was not nor had never been an organizer of the Communist Party, that he was not an organizer or member of the Communist Party, that he had once been a member of the Communist Party but was not one now, that he did not believe in its ideology, that he had been duped into membership, etc., etc. From all the answers which would have cleared his name and removed the ugly insinuation of disloyalty, or set out the facts as they were, he chose to remain silent. He preferred that the world go on accusing him, even if-unfairly (and he knew if the accusation was unfair or not) of having once been faithless to the Constitution of the United States; he preferred to remain in the shadows of disrepute rather than that, with a few words, he should clear the atmosphere of suspicion and doubt. This was a prerogative he was entitled to indulge, but with its exercise went the price which inevitably accompanies silence in the face of so grave a charge.

Could the Superintendent of Schools, with the responsibility he owes the school children and their parents, permit on his teaching staff a member of the Communist Party, or, what amounts to the same thing (where school children are in the picture) á person who refused to deny the Communist Party activity with which he stood accused? Suppose the Superintendent had asked Kaplan if he belonged to a gang of armed robbers which had been holding up banks in the community, and suppose that Kaplan had refused to answer? It is inconceivable that a person so accused of banditry would be allowed to mingle with young children who have been taught to look up at him as a model in morals and comportment. Is it not as equally unthinkable that a person accused of being a member of a band of international criminal conspiracy should be allowed to impart instruction to the future citizens of our land?

No well-informed person in America is any longer in doubt as to the plotting, purposes, plans, and deeds of the Communist international conspiracy. It has already conquered one-fourth of the earth’s land surface and imposed tyrannical domination over one-third of the world’s population; it has condemned to slave camps and slave mines millions who have dared to speak or act for freedom; it has, through starvation campaigns, liquidation squads, Siberian exile, and other methods of torture killed off millions who have opposed the dictatorship of the proletariat; it is constantly interfering in the internal affairs of other countries, visiting upon innocent populations death, destitution, and untold misery; it is constantly abusing nations and personages devoted to the cause of world peace; although its master and leading exponent is a member of the United Nations, which is dedicated to the cause of eliminating wars, it has encouraged and fomented wars in Korea, Vietnam, and other areas, with resulting loss and mutilation of life and limb and destruction of cities, homes, and property; it is constantly threatening to upset every safeguard of international amity and to plunge the world into the catastrophe of a third world war which could well bring about the complete destruction of the human race; it scoffs at religion, persecutes clergymen, and offers blasphemy to the Supreme Being which governs all. It is because of this evil force which is loose in the world that America, a peace-loving nation, must be on guard at all times against attack; that it must call to arms a goodly percentage of its youth who otherwise would be preparing for a peaceful career; that it must expend the largest part of its income in the manufacture of weapons, ammunition, and equipment for defense. It is because of tbe Communist menace to world order that worry rocks the cradle and the heart is filled with foreboding as to the future. It is because of the threatening Soviet clouds which hover over the world that the resources of America are being depleted and the American people are being burdened with a tax rate never known heretofore.

All this is common knowledge and appears in the adjudications of our Courts, in statutes passed by Federal and State legislatures, in reports of Congressional committees, in the daily newspapers, in periodicals, and on radio and television. No educated person, much less a school teacher, can plead ignorance to these universally recognized facts. When a school teacher refuses to answer, upon being asked by his superior, whether he forms part of this organization which is committed to catastrophe and destruction of all that in the Western world is accepted as good, decent, just, and conducive to wholesome happiness, this is evidence, as stated in the formal charges against Samuel M. Kaplan of “a lack of professional fitness” and lack of responsibility to the teacher’s profession and to the school system; and such refusal to answer “constitutes a wilful violation of the school laws of this Commonwealth.”

With regard to the purposes of the Communist Party, it is enough to quote from the excellent Opinion by Chief Justice Horace Stern in the case of Albert Appeal, 372 Pa. 13, 20, where he said: “That the Communist Party advocates the use of violence to overturn the governments of non-Communist countries, and especially that of the United States, has been proclaimed in legislative statutes, and can fairly be said to be a matter of general notoriety. . . For example, in our own Commonwealth, the Act of December 21, 1951, P.L. 1712 proclaims that ‘Upon evidence which has been presented and proof which has already been established before the Congress of the United States, the federal courts of the United States, the courts of the Commonwealth of Pennsylvania, and the General Assembly of the Commonwealth of Pennsylvania, there exists an international revolutionary Communist conspiracy which is committed to the overthrow by force and violence of the government of the United States and of the several states, such conspiracy including the Communist Party of the United States, its local components in Pennsylvania, and the members thereof.”

Our Courts have held that where a teacher is physically unable to perform his duties he may not receive pay for the period of his incapacitation. (Hetkowski v. Dickson City Borough School District, 141 Pa. Superior Ct. 526; Com. ex rel. Wesenberg v. Bethlehem School District, 148 Pa. Superior Ct. 250.)

Judge Woodside, in his Opinion of the Superior Court in this case, cogently commented on the incon: sistency of depriving a teacher of his wages if he breaks his leg but of paying a teacher who fractures the moral code: “When a teacher breaks his leg he becomes physically unfit to perform his duties, and when he breaks the moral laws he becomes morally unfit to perform his duties. To deny compensation to the teacher who suffers a physical or mental handicap which makes him unfit to teach, and allow compensation to the teacher who deliberately breaks the moral law which makes him unfit to teach, would result in an absurd and unreasonable interpretation of the act. The legislature does not intend such an interpretation of its acts.”

In his argument before the Superior Court the appellant asserted that denying him compensation for the period he was not allowed to teach, although ready and willing, was unfair since lie could not have had any harmful influence on the students, no charges of improper teaching or classroom misconduct having been filed against him. We subscribe to the Superior Court’s observation on that argument: “The influence of a teacher upon his pupils is not limited to what he says and does in the schoolroom. As a minister’s conduct outside of the church is a matter of concern to his parishioners so is the conduct of a teacher outside of the schoolroom a matter of concern to the school authorities. Children frequently attempt to emulate their teachers and their every known act frequently becomes a matter of importance to the student. Although a teacher’s conduct outside of the classroom is probably less important in urban districts than in rural districts and in high school than in grammar school, nevertheless the teacher’s right to teach cannot depend solely upon his conduct in the schoolroom.”

Chief Justice Stern also stated the matter excellently in Albert Appeal, supra: “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.”

Judgment affirmed.

Mr. Justice Chidsey concurs in the result. Mr. Chief Justice Horace Stern took no part in the consideration or decision of this case.