Petitioner, a teacher in the public schools of Philadelphia,
refused to answer questions relating to Communistic affiliations
and activities asked by his Superintendent, after being warned that
the inquiry related to his fitness to be a teacher, and that
refusal to answer might lead to his dismissal. After administrative
proceedings in which his loyalty and his political beliefs and
associations were not in issue, the Board of Education found that
his refusal to answer his Superintendent's questions constituted
"incompetency," a ground for discharge under the state tenure
statute, and discharged him. The State Supreme Court sustained this
action.
Held: his discharge did not violate the Due Process
Clause of the Fourteenth Amendment. Pp.
357 U. S.
400-409.
(a) By engaging in teaching in public schools, petitioner did
not give up his right to freedom of belief, speech or association,
but he did undertake obligations of frankness, candor, and
cooperation in answering inquiries made by his superior examining
into his fitness to serve as a public school teacher. P.
357 U. S.
405.
(b) A municipal employer is not disabled, because it is an
agency of the State, from inquiry of its employees as to matters
that may prove relevant to their fitness and suitability for the
public service.
Garner v. Board of Public Works,
341 U. S. 716. P.
357 U. S.
405.
(c) The questions petitioner refused to answer were relevant to
his fitness and suitability as a teacher, and his discharge was
based upon his insubordination and lack of frankness and candor in
refusing to answer such questions -- not upon disloyalty or any of
the activities inquired about. Pp.
357 U. S.
405-406.
(d) The Federal Constitution does not require that a teacher's
classroom conduct be the sole basis for determining his fitness. P.
357 U. S.
406.
(e) The State Supreme Court held that "incompetency," within the
meaning of the relevant state statute, includes petitioner's
Page 357 U. S. 400
"deliberate and insubordinate refusal to answer the questions of
his administrative superior in a vitally important matter
pertaining to his fitness," and this interpretation is not
inconsistent with the Federal Constitution. Pp.
357 U. S.
406-408.
(f) Petitioner's claim that he was denied due process because he
was not sufficiently warned of the consequences of his refusal to
answer his Superintendent's questions is not supported by the
record. P.
357 U. S.
408.
(g)
Slochower v. Board of Education, 350 U.
S. 551, and
Konigsberg v. State Bar of
California, 353 U. S. 252,
distinguished. Pp.
357 U. S.
408-409.
386 Pa. 82, 125 A.2d 327, affirmed.
MR. JUSTICE BURTON delivered the opinion of the Court.
The question before us is whether the Board of Public Education
for the School District of Philadelphia, Pennsylvania, violated the
Due Process Clause of the Fourteenth Amendment to the Constitution
of the United States when the Board, purporting to act under the
Pennsylvania Public School Code, discharged a public school teacher
on the ground of "incompetency," evidenced by the teacher's refusal
of his Superintendent's request to confirm or refute information as
to the teacher's loyalty and his activities in certain allegedly
subversive organizations. For the reasons hereafter stated, we hold
that it did not.
On June 25, 1952, Herman A. Beilan, the petitioner, who had been
a teacher for about 22 years in the Philadelphia Public School
System, presented himself at his Superintendent's office in
response to the latter's request. The Superintendent said he had
information which
Page 357 U. S. 401
reflected adversely on petitioner's loyalty, and he wanted to
determine its truth or falsity. In response to petitioner's
suggestion that the Superintendent do the questioning, the latter
said he would ask one question, and petitioner could then determine
whether he would answer it and others of that type. The
Superintendent, accordingly, asked petitioner whether or not he had
been the Press Director of the Professional Section of the
Communist Political Association in 1944. [
Footnote 1] Petitioner asked permission to consult
counsel before answering, and the Superintendent granted his
request.
On October 14, 1952, in response to a similar request,
petitioner again presented himself at the Superintendent's office.
Petitioner stated that he had consulted counsel and that he
declined to answer the question as to his activities in 1944. He
announced he would also decline to answer any other "questions
similar to it," "questions of this type," or "questions about
political and religious beliefs. . . ." The Superintendent warned
petitioner that this "was a very serious and a very important
matter, and that failure to answer the questions might lead to his
dismissal." The Superintendent made it clear that he was
investigating "a real question of fitness for [petitioner] to be a
teacher or to continue in the teaching work." These interviews were
given no publicity, and were attended only by petitioner, his
Superintendent, and the Assistant Solicitor of the Board.
On November 25, 1953, the Board instituted dismissal proceedings
against petitioner under § 1127 of the Pennsylvania Public School
Code of 1949. [
Footnote 2] The
only specification
Page 357 U. S. 402
which we need consider [
Footnote
3] charged that petitioner's refusal to answer his
Superintendent's questions constituted "incompetency" under § 1122
of that Code. [
Footnote 4] The
Board conducted a formal hearing on the charge. Petitioner was
present with counsel, but did not testify.
Page 357 U. S. 403
Counsel for each side agreed that petitioner's loyalty was not
in issue, and that evidence as to his disloyalty would be
irrelevant. [
Footnote 5] On
January 7, 1954, the Board found that the charge of incompetency
had been sustained, and, by a vote of fourteen to one, discharged
petitioner from his employment as a teacher.
Page 357 U. S. 404
On an administrative appeal, the Superintendent of Public
Instruction of Pennsylvania sustained the local Board. However, on
petitioner's appeal to the County Court of Common Pleas, that court
set aside petitioner's discharge and held that the Board should
have followed the procedure specified by the Pennsylvania Loyalty
Act, rather than the Public School Code. Finally, on the Board's
appeal, the Supreme Court of Pennsylvania, with two justices
dissenting, reversed the Court of Common Pleas and reinstated
petitioner's discharge. 386 Pa. 82, 98, 110, 125 A.2d 327, 334,
340. We granted certiorari. 353 U.S. 964.
In addition to the Public School Code, Pennsylvania has a
comprehensive Loyalty Act which provides for the discharge of
public employees on grounds of disloyalty or subversive conduct.
Purdon's Pa.Stat.Ann., 1941 (Cum.Ann.Pocket Pt., 1957), Tit. 65, §§
211-225. Petitioner stresses the fact that the question asked of
him by his Superintendent related to his loyalty. He contends that
he was discharged for suspected disloyalty, and that his discharge
is invalid because of failure to follow the Loyalty Act procedure.
However, the Pennsylvania Supreme Court held that the Board was not
limited to proceeding under the Loyalty Act, even though the
questions asked of petitioner related to his loyalty. We are bound
by the interpretation thus given to the Pennsylvania statutes by
the Supreme Court of Pennsylvania.
Barsky v. Board of
Regents, 347 U. S. 442,
347 U. S. 448;
Chicago, M., St. P. & P. R. Co. v. Risty, 276 U.
S. 567,
276 U. S. 570.
The only question before us is whether the Federal Constitution
prohibits petitioner's discharge for statutory "incompetency" based
on his refusal to answer the Superintendent's questions. [
Footnote 6]
Page 357 U. S. 405
By engaging in teaching in the public schools, petitioner did
not give up his right to freedom of belief, speech or association.
He did, however, undertake obligations of frankness, candor and
cooperation in answering inquiries made of him by his employing
Board examining into his fitness to serve it as a public school
teacher.
"A teacher works in a sensitive area in a schoolroom. There, he
shapes the attitude of young minds towards the society in which
they live. In this, the state has a vital concern. It must preserve
the integrity of the schools. That the school authorities have the
right and the duty to screen the officials, teachers, and employees
as to their fitness to maintain the integrity of the schools as a
part of ordered society cannot be doubted."
Adler v. Board of Education, 342 U.
S. 485,
342 U. S.
493.
As this Court stated in
Garner v. Board of Public
Works, 341 U. S. 716,
341 U. S.
720
"We think that a municipal employer is not disabled because it
is an agency of the State from inquiring of its employees as to
matters that may prove relevant to their fitness and suitability
for the public service."
The question asked of petitioner by his Superintendent was
relevant to the issue of petitioner's fitness and suitability to
serve as a teacher. Petitioner is not in a position to challenge
his dismissal merely because of the remoteness in time of the 1944
activities. It was apparent from the circumstances of the two
interviews that the Superintendent had other questions to ask.
Petitioner's refusal to answer was not based on the remoteness of
his 1944 activities. He made it clear that he would not answer any
question of the same type as the one asked. Petitioner blocked from
the beginning any inquiry into his Communist activities, however
relevant to his present loyalty. The Board based its dismissal upon
petitioner's
Page 357 U. S. 406
refusal to answer any inquiry about his relevant activities --
not upon those activities themselves. It took care to charge
petitioner with incompetency, and not with disloyalty. It found him
insubordinate and lacking in frankness and candor -- it made no
finding as to his loyalty.
We find no requirement in the Federal Constitution that a
teacher's classroom conduct be the sole basis for determining his
fitness. Fitness for teaching depends on a broad range of factors.
The Pennsylvania tenure provision [
Footnote 7] specifies several disqualifying grounds,
including immorality, intemperance, cruelty, mental derangement,
and persistent and willful violation of the school laws, as well as
"incompetency." However, the Pennsylvania statute, unlike those of
many other States, contains no catch-all phrase, such as "conduct
unbecoming a teacher," [
Footnote
8] to cover disqualifying conduct not included within the more
specific provisions. Consequently, the Pennsylvania courts have
given "incompetency" a broad interpretation. This was made clear in
Horosko v. Mt. Pleasant School District, 335 Pa. 369, 371,
374-375, 6 A.2d 866, 868, 869-870:
"If the fact be that she 'now commands neither the respect nor
the good will of the community' and if the record shows that effect
to be the result of her
Page 357 U. S. 407
conduct within the clause quoted, it will be conclusive evidence
of incompetency. It has always been the recognized duty of the
teacher to conduct himself in such way as to command the respect
and good will of the community, though one result of the choice of
a teacher's vocation may be to deprive him of the same freedom of
action enjoyed by persons in other vocations. Educators have always
regarded the example set by the teacher as of great importance. . .
."
"
* * * *"
"The term 'incompetency' has a 'common and approved usage.' The
context does not limit the meaning of the word to lack of
substantive knowledge of the subjects to be taught. Common and
approved usage give a much wider meaning. For example, in 31 C.J.,
with reference to a number of supporting decisions, it is
defined:"
"A relative term without technical meaning. It may be employed
as meaning disqualification; inability; incapacity; lack of
ability, legal qualifications, or fitness to discharge the required
duty."
"In Black's Law Dictionary, 3rd edition, page 945, and in 1
Bouv.Law Dict., Rawle's Third Revision, p. 1528, it is defined as
'Lack of ability or fitness to discharge the required duty.' Cases
construing the word to the same effect are found in 4 Words and
Phrases, First Series, page 3510, and 2 Words and Phrases, Second
Series, page 1013. Webster's New International Dictionary defines
it as 'want of physical, intellectual, or moral ability;
insufficiency; inadequacy; specif., want of legal qualifications or
fitness.' Funk & Wagnalls Standard Dictionary defines it as
'General lack of capacity of fitness, or lack of the special
qualities required for a particular purpose.'
Page 357 U. S. 408
In the
Horosko case, a teacher was discharged for
'incompetency' because of her after-hours activity in her husband's
beer garden, serving as a bartender and waitress, occasionally
drinking beer, shaking dice with the customers for drinks, and
playing the pinball machine.
Cf. Schwer's Appeal, 36
Pa.Dist. & Co. R. 531, 536."
In the instant case, the Pennsylvania Supreme Court has held
that "incompetency" includes petitioner's
"deliberate and insubordinate refusal to answer the questions of
his administrative superior in a vitally important matter
pertaining to his fitness."
386 Pa. at 91, 125 A.2d at 331. This interpretation is not
inconsistent with the Federal Constitution.
Petitioner complains that he was denied due process because he
was not sufficiently warned of the consequences of his refusal to
answer his Superintendent. The record, however, shows that the
Superintendent, in his second interview, specifically warned
petitioner that his refusal to answer "was a very serious and a
very important matter, and that failure to answer the questions
might lead to his dismissal." That was sufficient warning to
petitioner that his refusal to answer might jeopardize his
employment. Furthermore at petitioner's request, his Superintendent
gave him ample opportunity to consult counsel. There was no element
of surprise.
Our recent decisions in
Slochower v. Board of Higher
Education, 350 U. S. 551, and
Konigsberg v. State Bar of California, 353 U.
S. 252, are distinguishable. In each, we envisioned and
distinguished the situation now before us. In the
Slochower case, at
350 U. S. 558,
the Court said:
"It is one thing for the city authorities themselves to inquire
into Slochower's fitness, but quite another for his discharge to be
based entirely on events occurring before a federal committee whose
inquiry was announced as not directed at 'the property,
affairs,
Page 357 U. S. 409
or government of the city, or . . . official conduct of city
employees.' In this respect, the present case differs materially
from
Garner [
341 U.S.
716], where the city was attempting to elicit information
necessary to determine the qualifications of its employees. Here,
the Board had possessed the pertinent information for 12 years, and
the questions which Professor Slochower refused to answer were
admittedly asked for a purpose wholly unrelated to his college
functions. On such a record, the Board cannot claim that its action
was part of a
bona fide attempt to gain needed and
relevant information."
In the
Konigsberg case, supra, at
353 U. S.
259-261, this Court stressed the fact that the action of
the State was not based on the mere refusal to answer relevant
questions; rather, it was based on inferences impermissibly drawn
from the refusal. In the instant case, no inferences at all were
drawn from petitioner's refusal to answer. The Pennsylvania Supreme
Court merely equated refusal to answer the employing Board's
relevant questions with statutory "incompetency."
Inasmuch as petitioner's dismissal did not violate the Federal
Constitution, the judgment of the Supreme Court of Pennsylvania
Affirmed.
[
Footnote 1]
The Communist Political Association was the predecessor
organization of the Communist Party of the United States.
See
Yates v. United States, 354 U. S. 298,
354 U. S. 304,
note 5.
[
Footnote 2]
Pa.Laws 1949, No. 14, Purdon's Pa.Stat.Ann., 1950, Tit. 24, §
11-1127.
[
Footnote 3]
Petitioner's refusal to answer his Superintendent was also
charged as persistent and willful violation of the school laws,
another statutory ground for dismissal.
See 357 U.
S. infra.
On November 18, 1953, petitioner had been called to testify as a
witness in a Philadelphia hearing of a Subcommittee of the United
States House Committee on Un-American Activities. There, he was
asked to confirm or refute several reports as to his alleged
subversive activities in 1949 and earlier years. He declined to
answer, relying upon the Fifth Amendment to the Federal
Constitution. That invocation of the Fifth Amendment was specified
by the Board as a further ground of "incompetency." All charges
were sustained on the administrative level.
The Pennsylvania Supreme Court found that petitioner's refusal
to answer his Superintendent evidenced a statutory "incompetency"
sufficient to support his dismissal, and therefore found it
unnecessary to pass on the other grounds for dismissal. 386 Pa. 82,
94, 125 A.2d 327, 333. It is suggested that petitioner has a right
to the initial judgment of the administrative authorities on
whether refusal to answer the Superintendent, independent of the
other charges, would support the dismissal. Under the Pennsylvania
Public School Code, Common Pleas Courts exercise
de novo
review of dismissals. Purdon's Pa.Stat.Ann., 1950 (Cum.Ann.Pocket
Pt., 1957), Tit. 24, § 11-1132(b). A dismissal can be sustained if
the court finds support for any one of the multiple grounds relied
upon by the dismissing school board.
Cf. Brown Case, 347
Pa. 418, 32 A.2d 565,
aff'g 151 Pa.Super. 522, 30 A.2d
726,
reported sub nom. Appeal of School District of City of
Bethlehem, 347 Pa. 418, 32 A.2d 565. This allocation of
functions between the Pennsylvania courts and administrative
agencies does not violate due process. Accordingly, it is necessary
for us to consider only the one ground relied upon by the
Pennsylvania Supreme. As a matter of jurisdiction, only
jurisdiction is over the Pennsylvania Supreme Court, as the highest
court of the State.
[
Footnote 4]
Section 1122 of that Code, in 1952 and 1953, provided that
"The only valid causes for termination of a contract heretofore
or hereafter entered into with a professional employe shall be
immorality,
incompetency, intemperance, cruelty,
persistent negligence, mental derangement, . . . persistent and
willful violation of the school laws of this Commonwealth on the
part of the professional employee."
(Emphasis supplied.) Pa.Laws 1949, No. 14, as amended, Pa.Laws
1951, No. 463, § 16; Purdon's Pa.Stat.Ann., 1950 (Cum.Ann.Pocket
Pt., 1957), Tit. 24, § 11-1122.
As enacted in 1949, § 1122 had contained, after the words
"mental derangement," the clause, "advocation of or participating
in un-American or subversive doctrines." Pa.Laws 1949, No. 14. That
clause, however, was deleted by § 16 of the Pennsylvania Loyalty
Act, approved December 22, 1951, effective March 1, 1952. Pa.Laws
1951, No. 463.
[
Footnote 5]
Counsel for the Board at the outset of the hearing, stated:
"It is my contention, and it has been the thought of your
counsel since these proceedings were initiated, that these are not
proceedings brought against these respondents charging them with
disloyalty. If that were the situation, we would have a completely
different record, a completely different set of facts, a completely
different section under which the charges would be made, if made at
all."
"
* * * *"
"Now, so far as I am concerned, sir, and so far as my
presentation of testimony is concerned, I don't think whether this
man is loyal or disloyal has anything to do with this case. And if
your counsel's advice were being asked in the matter, I should say
that any testimony directed toward present loyalty or disloyalty is
completely out of this case."
"
* * * *"
"So far as this case is concerned, we are not delving into
present or past loyalty."
Counsel for petitioner stated:
"Mr. President, if you please, I have no intention of seeking
this proceeding become a loyalty hearing. Mr. Rhoads [counsel for
the Board] has stated that it is not. I agree with him
completely."
[
Footnote 6]
There is no showing that the statute was discriminatorily
applied.
Cf. Yick Wo v. Hopkins, 118 U.
S. 356;
Lane v. Wilson, 307 U.
S. 268.
[
Footnote 7]
See note 4
supra.
[
Footnote 8]
E.g., Baldwin's Ky.Rev.Stat.Ann., 1955, § 161.790(1),
"conduct unbecoming a teacher," "during good behavior."
Mass.Ann.Laws, 1953 (Cum.Supp., 1957), c. 71, § 42, "conduct
unbecoming a teacher," "or other good cause."
West's Ann.Cal.Code, Education, § 13521(a), (e), "unprofessional
conduct," "Evident unfitness for service."
Smith-Hurd's Ill.Ann.Stat., 1946 (Cum.Ann.Pocket Pt., 1957), c.
122, § 6-36, "other sufficient cause."
Burns' Ind.Ann.Stat., 1948 Replacement Vol., § 28-4308, "other
good and just cause."
MR. JUSTICE FRANKFURTER, concurring.
Although I join the opinion of the Court in both these cases, a
word of emphasis is appropriate against finding that New York and
Pennsylvania -- for the highest courts of those States are, for our
purposes, the States -- have violated the United States
Constitution by attributing to them determinations that they have
not made, and have
Page 357 U. S. 410
carefully avoided making. Such a finding would rest, as I
understand it, on the theory that, although the States, with a due
sense of responsibility, have not made these determinations, they
may be attributed to them because persons who do not make
distinctions that are important in law and the conduct of
government may loosely infer them.
The services of two public employees have been terminated
because of their refusals to answer questions relevant, or not
obviously irrelevant, to an inquiry by their supervisors into their
dependability. When these two employees were discharged, they were
not labeled "disloyal." They were discharged because governmental
authorities, like other employers, sought to satisfy themselves of
the dependability of employees in relation to their duties.
Accordingly, they made inquiries that, it is not contradicted,
could in and of themselves be made. These inquiries were balked.
The services of the employees were therefore terminated.
Because the specific questions put to these employees were part
of a general inquiry relating to what is compendiously called
subversion and to conduct that, on due proof, may amount to
disloyalty, every part of the process of inquiry is given the
attribute of an inquiry into disloyalty and every resulting
severance from service is deemed a finding of disloyalty. The
argument runs, in essence, that, because such an inquiry may in
certain instances lead to a determination of disloyalty, the
refusal to answer any questions in this process and dismissal
therefor themselves establish disloyalty. To make such an
attribution to a State, to draw such an inference from a carefully
limited exercise of state power, to disallow state action because
there are those who may draw inferences that the State itself has
not drawn, and has avoided drawing, is a curbing of the States
through the Fourteenth Amendment that makes of that Amendment an
instrument
Page 357 U. S. 411
of general censorship by this Court of state action. In refusing
to put the Fourteenth Amendment to such a use, I am, of course,
wholly unconcerned with what I may think of the wisdom or folly of
the state authorities. I am not charged with administering the
transportation system of New York or the school system of
Pennsylvania. The Fourteenth Amendment does not check foolishness
or unwisdom in such administration. The good sense and right
standards of public administration in those States must be relied
upon for that, and ultimately the electorate.
MR. CHIEF JUSTICE WARREN, dissenting.
I believe the facts of record in No. 63 compel the conclusion
that Beilan's plea of the Fifth Amendment before a subcommittee of
the House Committee on Un-American Activities was so inextricably
involved in the Board's decision to discharge him that the validity
of the Board's action cannot be sustained without consideration of
this ground. The clearest indication of this is the fact that, for
13 months following petitioner's refusal to answer the
Superintendent's questions, he was retained as a school teacher and
continually rated "satisfactory," yet, five days after his
appearance before the House subcommittee, petitioner was suspended.
Since a plea of the Fifth Amendment before a congressional
committee is an invalid basis for discharge from public employment,
Slochower v. Board of Higher Education, 350 U.
S. 551, I would reverse the judgment approving
petitioner's dismissal.
I cannot agree that the invalidity of the Board's action is
cured by the Pennsylvania Supreme Court's conclusion that the
dismissal was "justified" if any charge against petitioner was
sustained. Whether the first refusal alone
Page 357 U. S. 412
would "justify" the discharge we need not decide. This Court has
previously held that, where a conclusion of guilt may rest on a
constitutionally impermissible basis, the adjudication must be set
aside, notwithstanding a state court's conclusion that permissible
bases existed on which the decision might have rested.
Stromberg v. California, 283 U. S. 359,
283 U. S. 368;
see also Williams v. North Carolina, 317 U.
S. 287,
317 U. S. 292.
There may be exceptions to the application of this principle to the
full range of state administrative action. Nevertheless, on the
particular facts of this case, the invalid basis of the State's
action is too critical to be ignored.
For these reasons, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and I
dissent in No. 63. I also dissent in No. 165 for the reasons stated
in the dissenting opinion of MR. JUSTICE BRENNAN.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
The holding of the Court that the teacher in the
Beilan
case and the subway conductor in the
Lerner case could be
discharged from their respective jobs because they stood silent
when asked about their Communist affiliations cannot, with due
deference, be squared with out constitutional principles.
Among the liberties of the citizens that are guaranteed by the
Fourteenth Amendment are those contained in the First Amendment.
Stromberg v. California, 283 U. S. 359;
De Jonge v. Oregon, 299 U. S. 353;
Murdock v. Pennsylvania, 319 U. S. 105;
Everson v. Board of Education, 330 U. S.
1;
Staub v. City of Baxley, 355 U.
S. 313,
355 U. S. 321.
These include the right to believe what one chooses, the right to
differ from his neighbor, the right to pick and
Page 357 U. S. 413
choose the political philosophy that he likes best, the right to
associate with whomever he chooses, the right to join the groups he
prefers, the privilege of selecting his own path to salvation. The
Court put the matter succinctly in
Board of Education v.
Barnette, 319 U. S. 624,
319 U. S.
641-642:
"We can have intellectual individualism and the rich cultural
diversities that we owe to exceptional minds only at the price of
occasional eccentricity and abnormal attitudes. When they are so
harmless to others or to the State as those we deal with here, the
price is not too great. But freedom to differ is not limited to
things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order."
"If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein."
We deal here only with a matter of belief. We have no evidence
in either case that the employee in question ever committed a
crime, ever moved in treasonable opposition against this country.
The only mark against them -- if it can be called such -- is a
refusal to answer questions concerning Communist Party membership.
This is said to give rise to doubts concerning the competence of
the teacher in the
Beilan case and doubts as to the
trustworthiness and reliability of the subway conductor in the
Lerner case.
Our legal system is premised on the theory that every person is
innocent until he is proved guilty. In this country, we have,
however, been moving away from that concept. We have been
generating the belief that
Page 357 U. S. 414
anyone who remains silent when interrogated about his unpopular
beliefs or affiliations is guilty. I would allow no inference of
wrongdoing to flow from the invocation of any constitutional right.
I would not let that principle bow to popular passions. For all we
know, we are dealing here with citizens who are wholly innocent of
any wrongful action. That must indeed be our premise. When we make
the contrary assumption, we part radically with our tradition.
If it be said that we deal not with guilt or innocence, but with
frankness, the answer is the same. There are areas where government
may not probe. Private citizens, private clubs, private groups may
make such deductions and reach such conclusions as they choose from
the failure of a citizen to disclose his beliefs, his philosophy,
his associates. But government has no business penalizing a citizen
merely for his beliefs or associations. It is government action
that we have here. It is government action that the Fourteenth and
First Amendments protect against. We emphasized in
NAACP v.
Alabama, 357 U. S. 449,
that freedom to associate is one of those liberties protected
against governmental action and that freedom from "compelled
disclosure of affiliation with groups engaged in advocacy" is vital
to that constitutional right. We gave protection in the
NAACP case against governmental probing into political
activities and associations of one dissident group of people. We
should do the same here.
If we break with tradition and let the government penalize these
citizens for their beliefs and associations, the most we can assume
from their failure to answer is that they were Communists. Yet, as
we said in
Wieman v. Updegraff, 344 U.
S. 183,
344 U. S. 190,
membership in the Communist Party "may be innocent." The member may
have thought that the Communist movement would develop in the
parliamentary tradition here, or he may not have
Page 357 U. S. 415
been aware of any unlawful aim, or knowing it, may have embraced
only the socialist philosophy of the group, not any political
tactics of violence and terror. Many join associations, societies,
and fraternities with less than full endorsement of all their
aims.
We compound error in these decisions. We not only impute
wrongdoing to those who invoke their constitutional rights. We go
further and impute the worst possible motives to them.
As Judge Fuld said in dissent in the
Lerner case,
"It is a delusion to think that the nation's security is
advanced by the sacrifice of the individual's basic liberties. The
fears and doubts of the moment may loom large, but we lose more
than we gain if we counter with a resort to alien procedures or
with a denial of essential constitutional guarantees."
2 N.Y.2d 355, 378, 161 N.Y.S.2d 7, 25, 141 N.E.2d 533, 546.
Our initial error in all this business (
see Dennis v. United
States, 341 U. S. 494) was
our disregard of the basic principle that government can concern
itself only with the actions of men, not with their opinions or
beliefs. As Thomas Jefferson said in 1779:
". . . the opinions of men are not the object of civil
government, nor under its jurisdiction; . . . it is time enough for
the rightful purposes of civil government for its officers to
interfere when principles bread out into overt acts against peace
and good order. [
Footnote 2/1]"
The fitness of a subway conductor for his job depends on his
health, his promptness, his record for reliability, not on his
politics or philosophy of life. The fitness of a teacher for her
job turns on her devotion to that priesthood, her education, and
her performance in the library, in the laboratory, and the
classroom, not on her political beliefs. Anyone who plots against
the government and
Page 357 U. S. 416
moves in treasonable opposition to it can be punished.
Government rightly can concern itself with the actions of people.
But it's time we called a halt to government penalizing people for
their beliefs. To repeat, individuals and private groups can make
any judgments they want. But the realm of belief -- as opposed to
action -- is one which the First Amendment places beyond the long
arm of government.
A teacher who is organizing a Communist cell in a schoolhouse or
a subway conductor who is preparing the transportation system for
sabotage would plainly be unfit for his job. But we have no such
evidence in the records before us. As my Brother BRENNAN points
out, to jump to those conclusions on these records is to shortcut
procedural due process.
In sum, we have here only a bare refusal to testify; and the
Court holds that sufficient to show that these employees are unfit
to hold their public posts. That makes qualification for public
office turn solely on a matter of belief -- a notion very much at
war with the Bill of Rights.
When we make the belief of the citizen the basis of government
action, we move toward the concept of total security. Yet total
security is possible only in a totalitarian regime [
Footnote 2/2] -- the kind of system we profess to
combat.
Page 357 U. S. 417
[
Footnote 2/1]
2 Papers of Thomas Jefferson (Boyd ed. 1950) 546.
[
Footnote 2/2]
In an analogous situation, Judge Pope stated the problem for the
Court of Appeals in
Parker v. Lester, 227 F.2d 708,
721:
"It cannot be said that, in view of the large problem of
protecting the national security against sabotage and other acts of
subversion, we can sacrifice and disregard the individual interest
of these merchant seamen because they are comparatively few in
number. It is not a simple case of sacrificing the interests of a
few to the welfare of the many. In weighing the considerations of
which we are mindful here, we must recognize that, if these
regulations may be sustained, similar regulations may be made
effective in respect to other groups as to whom Congress may next
choose to express its legislative fears. No doubt merchant seamen
are in a sensitive position in that the opportunities for serious
sabotage are numerous. If it can be said that a merchant seaman,
notwithstanding his being on board, might sink the ship loaded with
munitions for Korea, it is plain that many persons other than
seamen would be just as susceptible to security doubts. The
enginemen and trainmen hauling the cargo to the docks, railroad
track and bridge inspectors, switchmen and dispatchers, have a
multitude of opportunities for destruction. Dangerous persons might
infiltrate the shipping rooms of factories where the munitions are
being packed for shipment to Korea with opportunities for inserting
bombs appropriately timed for explosion on board ship. All persons
who are in factories making munitions and material for the armed
forces have opportunities for sabotage, and the same may be said of
all operators of transportation facilities, not to mention workers
upon the docks."
"
* * * *"
"It may be possible that we have reached an age when our system
of constitutional freedom and individual rights cannot hold its own
against those who, under totalitarian discipline are prepared to
infiltrate nor only our public services, but our civilian
employments as well. In the event of war we may have to anticipate
Black Tom explosions on every waterfront, poison in our water
systems, and sand in all important industrial machines. But the
time has not come when we have to abandon a system of liberty for
one modeled on that of the Communists. Such a system was not that
ordained by the framers of our Constitution. It is the latter we
are sworn to uphold."
MR. JUSTICE BRENNAN, dissenting.
It is instructive on occasion to ask why particular cases are
brought before this Court for review. The Court has said again and
again that the incorrectness of a decision of a court below -- and
especially of a state court -- is not sufficient reason for us to
exercise our discretionary power to bring the case here. There must
be "special and important reasons therefor." Sup.Ct.Rule 19(1). We
must therefore ask ourselves the question: what special character
and importance of the right asserted justified our taking these
cases for review?
The Court treats the cases as though the only right involved
were the right of an unreliable subway conductor
Page 357 U. S. 418
and an incompetent schoolteacher to hold their jobs. But if that
were really all that was involved in these cases, I fail to see why
it should take some nine pages in each case to justify the State's
action. I can scarcely believe that such concern would be displayed
if the question were whether there was evidence to show that Lerner
was unreliable about getting the subway doors opened promptly at
each station, or that Beilan was incompetent as an algebra teacher.
It is obvious that more is at stake here than the loss of positions
of public employment for unreliability or incompetence. Rather, it
is the simultaneous public labeling of the employees as disloyal
that gives rise to our concern.
New York and Pennsylvania have publicly announced that the
subway conductor and teacher are disloyal Americans. This
consequence of the States' actions is devastating beside the loss
of employment. In each case, a man's honor and reputation are
indelibly stained.
"There can be no dispute about the consequences visited upon a
person excluded from public employment on disloyalty grounds. In
the view of the community, the stain is a deep one; indeed, it has
become a badge of infamy."
Wieman v. Updegraff, 344 U. S. 183,
344 U. S.
190-191. The petitioners thus not only lose their
present jobs, but their standing in the community is so undermined
as doubtless to cost them most opportunities for future jobs.
Moreover, the States' actions touch upon important political
rights which have ever warranted the special attention of the
courts. It may be stated as a generality that government is never
at liberty to be arbitrary in its relations with its citizens, and
close judicial scrutiny is essential when state action infringes on
the right of a man to be accepted in his community, to express his
ideas in an atmosphere of calm decency, and to be free of the dark
stain of suspicion and distrust of his loyalty on account of his
political beliefs and associations.
Page 357 U. S. 419
NAACP v. Alabama, 357 U. S. 449. It
is these rights which stand before the bar today, and it is in the
awareness of their implications that these cases must be
decided.
The people of New York and Pennsylvania have voiced through
their legislatures their determination that the stain of disloyalty
shall not be impressed upon a state employee without fair
procedures in which the State carries the burden of proving
specific charges by a fair preponderance of evidence.
Cf. Adler
v. Board of Education, 342 U. S. 485. In
the New York Security Risk Law and the Pennsylvania Loyalty Act, 65
P.S. § 211
et seq., the States have endeavored to provide
the traditional Anglo-American standards of procedural due process
for the ascertainment of guilt. Yet this Court today finds no
denial of due process in the palpable evasion of these standards of
fair play by administrative officials. This Court refuses to pierce
the transparent denials that each of these employees was publicly
branded disloyal. The Court holds that we are bound by the
definition of state law pronounced by the States' high courts that
the dismissals were for unreliability and incompetency. Of course,
we accept state law as the high court of a State pronounces it, but
certainly our duty to secure to the individual the safeguards,
embodied in due process, against a State's arbitrary exercise of
power is no less when the state courts refuse to recognize what his
in fact occurred.
Cf. Payne v. Arkansas, 356 U.
S. 560;
Moore v. Michigan, 355 U.
S. 155.
See also Broad River Power Co. v. South
Carolina ex rel. Daniel, 281 U. S. 537,
281 U. S. 540.
In my view, the judgments in both cases must be reversed because
each petitioner has been branded a disloyal American without the
due process of law required of the States by the Fourteenth
Amendment.
"Strict adherence to required legal procedures, especially where
one's loyalty is being impugned, affords the greatest and, in last
analysis,
Page 357 U. S. 420
the ultimate assurance of the inviolability of our freedoms as
we have heretofore known them in this Country. Least of all should
they be impaired or trenched upon by procedural shortcuts."
Board of Public Education School District of Philadelphia v.
Beilan, 386 Pa. 82, 99, 125 A.2d 327, 335 (Jones, J.,
dissenting).
LERNER V. CASEY
In response to the outbreak of hostilities in Korea in 1950, the
New York Legislature, early in its next session, enacted its
Security Risk Law, Laws 1951, c. 233. Section 1 of the Act is a
declaration of legislative finding that the Korean hostilities had
brought about the existence "of a serious public emergency in this
state," and that "the employment of members of subversive groups
and organizations by government presents a grave peril to the
national security." Section 5 of the Act provides that the
appointing officer may transfer or suspend a person occupying a
position within a "security agency" of the State after a finding,
based "upon all the evidence," that,
"because of doubtful trust and reliability, the employment of
such person in such position would endanger the security or defense
of the nation and the state."
Pursuant to § 3 of the Act, the State Civil Service Commission
determined in 1953 that the New York Transit Authority is a
"security agency" for purposes of the Act. In 1954, appellant
Lerner, a subway conductor, was directed to appear before the
Department of Investigation of the City of New York. On this and a
subsequent appearance, he refused to answer the question whether he
was then a member of the Communist Party on the grounds that his
answer might tend to incriminate him.
When this information was brought to the attention of the
Transit Authority, they sent a notice to appellant advising him
that he was suspended under § 5 of the Security Risk Law
because
"reasonable grounds exist for
Page 357 U. S. 421
belief that, because of doubtful trust and reliability, your
employment in the position of Conductor will endanger the security
or defense of the nation and state."
The Transit Authority specified the grounds for this belief:
"[Y]ou refused to answer questions as to whether you were then a
member of the Communist Party and invoked the Fifth Amendment to
the Constitution of the United States."
Appellant brought this action in the New York state courts
alleging,
inter alia, that the finding that he was a
security risk within the meaning of the New York statute is wholly
without evidence and therefore violative of the Due Process Clause
of the Fourteenth Amendment. The New York courts dismissed this
contention by the following reasoning: (1) appellant's refusal to
answer whether he was then a member of the Communist Party proves a
lack of candor; (2) the lack of candor proves that he was of
doubtful trust and reliability; and (3) doubtful trust and
reliability proves further that appellant was a security risk
within the meaning of the Act. This Court, without discussion,
follows this chain of reasoning. But careful analysis, I believe,
shows that it is fallacious and leads to an arbitrary result.
The proper consideration of this case requires, I repeat, that
the true issue be stated with clarity. We are concerned with far
more than, in the Court's phrase, "the validity of appellant's
dismissal from his position as a subway conductor in the New York
City Transit System." The issue is, rather, the validity of his
dismissal as a security risk. The difference is profound, as I have
suggested, for the label "security risk" inevitably invites in the
public mind the deep suspicion of disloyalty, namely, that he is,
in the words of the statute, a threat to "the security or defense
of the nation and the state."
Of course, the term "security risk" is not synonymous with
"disloyal." In certain positions -- such as those involving access
to secret information, for instance -- an
Page 357 U. S. 422
employee who is an alcoholic or merely too talkative may well be
considered a risk to security. But this is not such a case. Lerner
handled no secrets. Common sense tells us that, if a subway
conductor is a security risk at all while at work, he is such
because he may engage in sabotage. Indeed, the record makes clear
that it was just this danger that motivated the New York
authorities in extending the Security Risk Law to the Transit
System.
The only evidence relied upon to show that Lerner is a disloyal
person is his refusal to answer the question whether he was a
member of the Communist Party. It might be conceded that the
question was relevant to his qualifications for his job, and
therefore properly asked. But once the propriety of the question
was established, the New York Court of Appeals approved treating
the nature of the question as though it were irrelevant to the
determination of the ultimate fact of disloyalty. And this Court,
too, says that the finding that Lerner is a security risk could be
based on a refusal to "give any other information about himself
which might be relevant to his employment." But can we suppose that
a subway conductor would be branded a security risk if he refused
to answer a question about his health? Of course, the answer is no,
although the question is plainly relevant to his qualifications for
employment. It may well be that, in such a case, the State would be
fully justified in discharging the employee as "untrustworthy and
unreliable." But one would hardly stretch reason so far as further
to label him a "security risk." To do so would be arbitrary in the
extreme. It is equally arbitrary here, for New York and this Court
expressly disavow the drawing of any inferences from the nature of
the question asked or from Lerner's refusal to answer it.
Nonetheless, by invoking the formalized procedures of its Security
Risk Law, New York has publicly announced that it possesses the
evidence required by the terms of that statute to justify the
Page 357 U. S. 423
conclusion that Lerner is, in fact, a disloyal American. Yet the
record is wholly devoid of the essential requisite of evidence to
support the ultimate finding of disloyalty.
Cf. Tot v. United
States, 319 U. S. 463. In
this plainly arbitrary manner, Lerner is gratuitously defamed, his
honor and reputation indelibly stained. And the wound is far deeper
than the occasion demands, for certainly New York cannot lack
procedures under which he could have been discharged without
blemishing his name.
BEILAN V. BOARD OF PUBLIC EDUCATION.
Here also, the Court has not, in my opinion, stated or decided
the true issue of due process tendered by this case. I doubt that a
meritorious question for our review would be presented if the issue
was, as the Court says, the constitutional validity of a dismissal
solely for refusal of the teacher to answer the relevant questions
asked by the School Superintendent in private interviews. I might
agree that the Due Process Clause imposes no restraint against
dismissal of a teacher who refuses to answer his superior's
questions asked in the privacy of his office and related to the
teacher's fitness to continue in his position.
But, in reality, Beilan was not dismissed by the Pennsylvania
school authorities upon that ground. The question whether he had
been an officer in the Communist Party in 1944 was first asked of
Beilan by the Superintendent at a private interview on June 25,
1952. Beilan did not refuse at that time to answer, but asked
permission to consult counsel. The Superintendent summoned him
again on October 14, 1952, and it was on that date that Beilan
advised the Superintendent that he declined to answer that or
similar questions. The Superintendent had told Beilan at the first
interview that the question was asked because the Superintendent
had information which reflected on Beilan's loyalty. Almost
fourteen months elapsed before Beilan was suspended and the
Page 357 U. S. 424
charges preferred which led to his dismissal. In that interval
Beilan's superiors had twice rated him in the high satisfactory
range of competency. Had the authorities seriously regarded Beilan
as incompetent because of his refusal to answer the
Superintendent's question, they would hardly have waited so long
before suspending him. The record is clear that proceedings were
actually initiated not because of that refusal to answer, but
because, on November 18, 1953, Beilan asserted the privilege
against self-incrimination under the Fifth Amendment when
interrogated at a publicly televised hearing held in Philadelphia
by a Subcommittee of the Committee on Un-American Activities of the
House of Representatives. Beilan testified at that hearing that he
was not then a member of the Communist Party, and had never
advocated the overthrow of the Government by force or violence, but
pleaded the protection of the Fifth Amendment when asked questions
directed to past party membership and activities. Five days later,
on November 23, 1953, the Superintendent notified Beilan that he
had been rated "unsatisfactory" because he had refused to answer
the Superintendent's question and also because "[y]ou invoked the
Fifth Amendment of the Federal Constitution" when questioned as to
"past associations with organizations of doubtful loyalty" by the
Subcommittee. The opinion on Beilan's administrative appeal which
sustained his dismissal by the Board of Education makes it clear
that the authorities viewed Beilan's invocation of the Fifth
Amendment before the Subcommittee as an admission of disloyalty.
The opinion states: "[B]y all the concepts of logic and reason, the
teacher admits that he has done something for which he might be
prosecuted criminally." It is this administrative record which
Beilan must present to his next employer.
Cf. Harmon v.
Brucker, 355 U. S. 579.
Page 357 U. S. 425
The Court of Common Pleas found that the administrative
proceedings were actually concerned solely with the question of
Beilan's suspected disloyalty, and reversed upon the ground that
"the legislature intended to deal with the matter of loyalty solely
by the method of procedure provided in the [Pennsylvania] Loyalty
Act."
The Pennsylvania Supreme Court, however, did not pass upon the
question of the propriety of the inference of disloyalty drawn by
the administrative authorities from Beilan's invocation of the
Fifth Amendment before the Subcommittee. That question is,
therefore, not before us. The Pennsylvania Supreme Court held that
the action of the authorities might be sustained solely because
Beilan had refused to answer the Superintendent's question. But
this is to sustain a finding of Beilan's disloyalty without
competent evidence of the fact. As in
Lerner, the
inference of disloyalty is arbitrary in the extreme. Yet
Pennsylvania, like New York in the
Lerner case, publicly
announces contrary to the fact that it possesses competent evidence
justifying the conclusion that Beilan is, in fact, a disloyal
American. In my view, Beilan also is, in that arbitrary manner,
denied due process of law in violation of the Fourteenth
Amendment.
I would reverse both judgments.