STATE EX REL. WASILEWSKI, Appellant, V. BOARD OF SCHOOL DIRECTORS OF CITY OF MILWAUKEE, Respondent.
Supreme Court of Wisconsin
September 5—October 3, 1961.
243
By the Court.—The appeal from the order and the original judgment is dismissed. The amended judgment is affirmed.
For the respondent there was a brief by John J. Fleming, city attorney, and Carl F. Kinnel and Harvey G. Odenbrett, assistant city attorneys, and oral argument by Mr. Kinnel and Mr. Odenbrett.
CURRIE, J. While the briefs of the parties are in some disagreement as to the issues before us on this appeal, we deem them to be as follows:
(1) May a teacher, such as relator, having tenure under
(2) Assuming there is credible evidence to support the board‘s findings of fact with respect to the manner in which relator handled discussions of sex in the classroom, the telling of vulgar stories to his students, and the opinion he expressed on the subject of premarital sex relations, did such conduct justify his discharge and prevent the same from being arbitrary, oppressive, and unreasonable?
(3) Is there substantial evidence in the record which supports the board‘s findings of fact?
(4) Do the board‘s findings of fact sustain its conclusions of law?
(5) What would be the effect on the result of this appeal if this сourt should determine that one of the conclusions of law, and the findings upon which it is based, would not sustain the discharge?
(6) Did the procedure followed by the superintendent and the board in this matter violate due process?
(7) Did the suspension of relator without pay by the superintendent prior to the hearing violate
In passing on the afore-stated seven issues it is incumbent to keep in mind the scope of review by certiorari. In another teacher-discharge case, State ex rel. Ball v. McPhee (1959), 6 Wis. (2d) 190, 199, 94 N. W. (2d) 711, this
Necessity of a Rule Violation or an Unheeded Warning in Order to Constitute Misconduct.
Under the provisions of
Relator contends that the action of the board in discharging him constituted an error of law and a measure in excess of its jurisdiction. This contention is grounded on the fact that relator had violated no rule promulgated by the board, or the superintendent, and had received no advance warning that his handling of discussions of sex in his classes was deemed objectionable by school authorities. However, relator‘s brief makes it clear that he does not take the untenable position that there never could be bad behavior, which would justify the discharge of a teacher having tenure, in the absence of conduct which violated some rule or which took place after he had been specifically warned that such сonduct would not be tolerated in the future.
Relator points out that authorities on the subject of sex education, as well as school administrators, are at opposite ends of the spectrum as to the extent to which sex should be taught, and that the board has failed to inform teachers to what extent they may teach this subject. At the hearing,
Based upon the foregoing, relator argues that the board‘s action in discharging him for interjecting matters of sex education into his speech classes was arbitrary, oppressive, and unreasonable. However, such argument fails to recognize that the issue is not whether it was improper conduct for relator to discuss sex in his speech classes, but rather whether his handling of this topic was such a violation of recognized standards of propriety as to constitute bad behavior. Thus, if relator‘s discourses on sex in his speech classes had been conducted in such a manner as to constitute proper conduct in a biology class, they would not automatically have been converted into misconduct warranting discharge by the happenstance that they took place in a speech class, absent any rule of the school authorities prohibiting
Did the Findings as to Relator‘s Conduct Establish Bad Behavior Which Would Warrant His Discharge?
We are confronted with the question of what test should be applied in determining whether a teacher‘s method of presenting sex education transcends recognized standards of propriety. The problem is rather analogous to that confronting courts in passing on whether certain publications constitute obscene literature. See State v. Chobot (1960), 12 Wis. (2d) 110, 106 N. W. (2d) 286, and cases cited therein. The test, or standard, adopted in such obscene-literature cases is how the alleged offending publication is interpreted by the contemporary community. Unfortunately, when we apply the test of whether relator‘s conduct transgressed recognized standards of propriety of the contemporary community in which he taught, we are dealing with one of those illusive and indefinite concepts of the law, such as that of “due process,” that defy precise definition.
In reviewing this record we are satisfied that the following findings as to relator‘s acts in his speech classes, establish conduct transcending the contemporary standards of propriеty of the community in which he taught: (1) That relator walked from desk to desk during a discussion of houses of prostitution and indicated to each student
In arriving at this conclusion we are not unmindful of the fact that relator‘s speech classes were composed entirely of senior boys, and that the ages of such boys were from seventeen to nineteen years, inclusive.
There are sound reasons of policy why such conduct, by transcending the bounds of the standards of propriеty of the contemporary community, constituted misconduct under
“If we agree that the moral virtues are not taught and learned in the usual way, or at least not in the same way in
which reading and writing and arithmetic are taught and learned, then they are incorporated into the pupil‘s system of values through practice, example, and emulation. With respect to moral formation the role of the teacher may not be minimized, for he is the chief creator of the student‘s educational environment and the main source of his inspiration.”
Sufficiency of the Evidence to Support the Findings.
In considering the immediately preceding issue, we have set forth certain conduct of the relator which has been determined to constitute misconduct warranting his discharge. Relator attacks the sufficiency of the evidence to sustain the findings of fact, whereby these enumerated activities were found to have occurred, as well as other additional findings of fact.
Our review of the testimony given at the hearing causes us to conclude that the board could reasonably make the findings which it did even though in some respects this court might have reached the opposite conclusion if it had been the trier of the facts. The applicable principle of law is well stated in State ex rel. Morehouse v. Hunt (1940), 235 Wis. 358, 367, 291 N. W. 745, as follows:
“The case is certiorari. When certiorari is invoked to review the action of an administrative board, the findings of the board upon the facts before it are conclusive if in any reasonable view the evidence sustains them.”
The testimony relating to сertain of the matters covered in the findings is in sharp dispute. We can perceive of no useful purpose which would be served by recounting the testimony of the various witnesses.
Relator particularly attacks the credibility of Gary Koeske, the student who made the first complaint to Superintendent
Sufficiency of Findings to Support Conclusions of Law.
The board‘s conclusions of law determined that both charges against the relator, lack of good behavior and inefficiency, had been proved. For reasons hereinbefore stated we hold that the findings of fact amply support the charge of lack of good behavior. However, we entertain considerable doubt whether the findings do support the charge of inefficiency when such findings are considered in connection with certain undisputed testimony in the record.
The testimony is undisputed that relator taught, and taught effectively, all of the material contained in the textbook used in his speech classes and outlined in the curriculum guide. All students were given an opportunity to speak and to take part in debates and symposiums. We are in full accord with the following statement appearing in the learned trial judge‘s memorandum decision:
“The finding of inefficiency must therefore be limited to the actual time used by the relator in the discourses and discussions constituting bad behavior. Considering other assignments required of and permitted by him as a teacher, the relator was not inefficient. The record indicates that in respect of everything but his bad behavior, his work was satisfactory—in fact, commended by his superior.”
We prefer not to decide the point of whether the findings, considered in the light of the undisputed evidence, sustain the conclusion of law that the charge against relator of inefficiency was proved. For the purpose of deciding this appeal we shall assume that the findings do not sustain such conclusion.
Effect of Presence of Findings or Conclusions Not Sustaining the Discharge.
Assuming that findings of fact Nos. 21 and 22, and the conclusion of law of the board thereon, which determined that the charge of inefficiency against relator had been proved, would not justify the discharge of relator, how does this affect the result of this appeal? The briefs of counsel in this case provide no answer to this question, nor do they cite any authorities bearing thereon. Surprisingly, independent research on our part has unearthed no authority which directly provides an answer.
It is nоt necessary to prove both bad behavior and inefficiency under
In Gray Well Drilling Co. v. State Board of Health (1953), 263 Wis. 417, 58 N. W. (2d) 64, this court reversed an agency order, and remanded the cause to the commission for further consideration, because certain findings of fact were not supported by the evidence even though other findings supported the order. The reason advanced by the court in so doing was that the erroneous findings may have influenced the agency in making its order. In a converse situation, where the court is satisfied that an unsupported finding or conclusion did not affect the result, no reversal and remand should be required.
We are satisfied in reviewing the record herein that the gravamen of the charges against relator was the impropriety of his manner of discussing sex before his speech classes and not the factor of the class time consumed in such discussions. Furthermore, we entertain no doubt that the board would have decreed relator‘s discharge regardless of how much or how little class time was consumed in such improper discussion.
In view of the foregoing, we conclude that the result of this appeal is not affected by whether the findings of fact and conclusions of law relating to the charge of inefficiency can be sustained.
Relator strenuously contends that there were defects in the procedure employed by Superintendent Vincent and the board which require that this court invalidate and set aside his discharge.
As previously noted, the scope of review in certiorari extends to whether the board or agency “acted according to law.” The “law,” as so used, refers not only to applicable statutes but also to the guaranties of “due process” found in the state and federal constitutions. In State ex rel. Ball v. McPhee, supra, we stated (p. 199):
“Construing the phrase ‘acted according to law,’ we deem the word ‘law’ means not only any applicable statutes but also the common-law concepts of due process and fair play and avoidance of arbitrary action. As Mr. Justice FRITZ well stated in State ex rel. Madison Airport Co. v. Wrabetz (1939), 231 Wis. 147, 153, 285 N. W. 504, ‘the cardinal and ultimate test of the presence or absence of due process of law in any administrative proceeding is the presence or absence of the “rudiments of fair play long known to our law.“‘”
We find that all of the procedural steps required by
In the Ball Case we held that the procedural requirements of the Wisconsin Administrative Procedure Act (ch. 227, Stats.), relating to the hearing аnd determination of contested cases by state administrative agencies, were applicable. However, we are satisfied that the defendant board is not an agency whose actions are subject to such act. This is because of the definition of “agency” set forth in
This conclusion requires that wе overrule the statement appearing in State ex rel. Nyberg v. School Directors (1926), 190 Wis. 570, 575, 209 N. W. 683, to the effect that a municipal school board is a state agency. Such statement read as follows:
“That the school board is an administrative body of the state and performing a state function, as distinguished from an administrative body of a city in the performance of a municipal function, was determined, and upon the contention made by the appellant here, in State ex rel. Harbach v. Mayor, 189 Wis. 84, 206 N. W. 210, and also in H. Schmitt & Son, Inc., v. Milwaukee, 185 Wis. 119, 121, 200 N. W. 678. See, also, Milwaukee v. McGregor, 140 Wis. 35, 37, 121 N. W. 642.”
The three cases cited in the above quotation do not expressly hold that a municipal board of education is a state agency. The first two merely determine that education is a state and not a local function. The fact thаt municipal boards of education are concerned with a state, rather than a local, function does not make them a part of the state government as distinguished from the municipal government. The McGregor Case involved the board of normal school regents which beyond question is part of the state government.
There remains for consideration the issue of whether any of the alleged procedural defects attacked by relator amounted to a denial of due process. We are satisfied that they do not.
Relator calls attention to certain statements made, and questions asked, by some members of the board which, he contends, disclose prejudice on the part of these members toward him and demonstrate that they had prejudged the controversy before hearing the testimony of relator‘s numerous witnesses. However, there is no showing that such board members based any of their conclusions upon any thing extraneous to the testimony presented at the hearing. Superintendent Vincent was the first witness called and he related rather extensively what had transpired in the conference held between himself, Jautz, and the relator on May 9, 1960, prior to the filing of the charges. This testimony included relator‘s admission to Vincent that he had said and had done a number of the various things which were later set forth in the charges and the findings of fact. Therefore, in view of Vincent‘s testimony it is not surprising that certain board members may have believed such testimony and prejudged the controversy before hearing all of the evidence adduced in behalf of the relator.
A more-meritorious contention of the relator is that concerning the incident relating to the book, “A History of Sexual Customs,” by Richard Lewinsohn, which is the subject of findings of faсt Nos. 23, 24, and 25. Parenthetically, while finding No. 23 states that the boy to whom relator loaned the book was fourteen years of age, he actually lacked less than one month of being fifteen; and the fact, that the boy‘s mother knew and at least impliedly consented to the receipt by her son of a book on sex, appears nowhere in the findings. Frankly, we are surprised that counsel for the board, who drew the findings of fact, should have included these three findings. This is because the charges against relator only charge him with conduct which occurred in his speech classes during the second semester of the 1959-1960 school year. The book incident clearly occurrеd in the first semester. Furthermore, the book was loaned to a student in one of relator‘s ninth-grade English classes.
The announced purpose of counsel for the board, in offering testimony with respect to the loaning of such book, was to establish that relator had received an advance warning
The inclusion of findings of fact Nos. 23, 24, and 25 have caused this court no little concern in passing on this appeal. Not only are we troubled by the aspect of lack of fair play in their inclusion, but also by the fact that we doubt if the loaning of the book in itself constituted such lack of good behavior as would substantiate a discharge. We statе this advisedly after examining the book as one of the exhibits in the record.
However, when we apply the test of whether the board would have reached the same result, i.e., ordering relator‘s discharge, if findings Nos. 23, 24, and 25 had been omitted, it is our opinion that they would. This is because the prior findings of fact so clearly establish lack of good behavior that we cannot believe the book incident was determinative of the result. Therefore, we conclude that we should not reverse and remand for a new hearing before the board.
Lastly, relator complains that the findings of fact and conclusions of law were drafted by counsel for the board, that they were nоt submitted to relator before the board acted thereon, and that counsel for relator was not accorded a like privilege of submitting proposed findings of fact and conclusions of law. The record establishes that counsel for the board drafted such findings and conclusions at the
“The functions of administrative agencies and courts are so different that the rules governing judicial proceedings are not ordinarily applicable to administrative agencies, unless made so by statute. It is not the province of courts to prescribe rules of procedure for administrative bodies, as that function belongs to the legislature.”
Validity of the Suspension Without Pay.
Superintendent Vincent temporarily suspended relator without pay on May 9, 1960, pursuant to board rule sec. 3.43. Relator attаcks the validity of his suspension pursuant to this rule. Rule sec. 3.43 provides:
“3.43 Suspension. The superintendent may, in an emergency, temporarily suspend a principal or teacher without pay, reporting his action and reasons therefor to the committee on appointment and instruction at its next regular meeting. That committee may recommend the discharge of such principal or teacher to the board.”
The board clearly would have no power to promulgate a rule which is inconsistent, or in conflict, with the Milwaukee teachers’ tenure statute,
In so far as the effective date of discharge is concerned, we interpret the statute as providing that a discharge is not effective until hearing and determination by the board if the teacher, during the ten-day period following receipt of the notice of the charges, requests a hearing thereon. If no hearing is requested during this ten-day period, then the discharge is effective at the end of that period, unless the notice of discharge should have specified a later effective date. We also deem that a necessary concomitant result of this interpretation is that any salary due the teacher under his contract of employment would continue until the effective date of discharge. Thus, to permit a teacher to be suspended without pay, pending the filing of charges, would have the effect of making the discharge date retroactive to the date of such suspension in so far as pay is concerned.
Therefore, it is our conclusion that the part of board rule sec. 3.43, which permits a teacher having tenure to be suspended without pay, contravenes
By the Court.—The judgment is modified so as to invalidate the suspension of relator without pay prior to discharge and, as so modified, is affirmed. No costs shall be taxed by either party upon this appeal.
MARTIN, C. J., and HALLOWS, J. (concurring). We concur in the result but do not agree with much of the dicta and the reasoning of the majority. Much of what has been said would have been better off unsaid. We especially
A teacher is hired for his competency to teach certain subjects. Sex education is a subject matter for which a teacher should be especially competent to teach. A parent and the school authorities have a right to expect that children are not going to be exposed to comments, discussions, and personal opinions of a teacher on sex who had not been certified to teach such subject in classes which do not relate to such subjects. There need be no rule of school authorities prohibiting the same or any specific warning to the teacher not to discuss sex in his classroom unless specifically authorized.
The majority opinion fails to recognize the right of the parent to determine whether his child shall be taught about sex in the public schools. The subject is optional. The concern of the parent as to who is to teach the subject and what his or her background and qualifications are, and the parent‘s right to visit the class in which the subject is discussed, are all ignored in the majority opinion. Only one qualified and so certified by the proper authorities should be allowed to undertake to teach this delicate subject and only in a class expressly held for that purpose.
A parent has the right to visit such a class to determine how such instructions are being given, who is giving the instructions, and in general know of the existing conditions. A parent should not be forced to visit each and every class which his child attends to determine whether sex education is being given and if it is, how it is being handled.