An Arkansas statute requires every teacher, as a condition of
employment in a state supported school or college, to file annually
an affidavit listing without limitation every organization to which
he has belonged or regularly contributed within the preceding five
years. Teachers in state supported schools and colleges are not
covered by a civil service system, they are hired on a year-to-year
basis, and they have no job security beyond the end of each school
year. The contracts of the teachers here involved were not renewed,
because they refused to file the required affidavits.
The statute is invalid, because it deprives
teachers of their right of associational freedom protected by the
Due Process Clause of the Fourteenth Amendment from invasion by
state action. Pp. 364 U. S.
(a) There can be no doubt of the right of a State to investigate
the competence and fitness of those whom it hires to teach in its
schools. P. 364 U. S.
(b) To compel a teacher to disclose his every associational tie
is to impair his right of free association, a right closely allied
to freedom of speech and a right which, like free speech, lies at
the foundation of a free society. Pp. 364 U. S.
(c) The unlimited and indiscriminate sweep of the statute here
involved and its comprehensive interference with associational
freedom go far beyond what might be justified in the exercise of
the State's legitimate inquiry into the fitness and competence of
its teachers. Pp. 364 U. S.
and 231 Ark. 641, 331 S.W.2d
Page 364 U. S. 480
MR. JUSTICE STEWART delivered the opinion of the Court.
An Arkansas statute compels every teacher, as a condition of
employment in a state-supported school or college, to file annually
an affidavit listing without limitation every organization to which
he has belonged or regularly contributed within the preceding five
years. At issue in these two cases is the validity of that statute
under the Fourteenth Amendment to the Constitution. No. 14 is an
appeal from the judgment of a three-judge Federal District Court
upholding the statute's validity, 174 F.
. No. 83 is here on writ of certiorari to the Supreme
Court of Arkansas, which also held the statute constitutionally
valid. 231 Ark. 641, 331 S.W.2d
The statute in question is Act 10 of the Second Extraordinary
Session of the Arkansas General Assembly of 1958. The provisions of
the Act are summarized in the opinion of the District Court as
"Act 10 provides in substance that no person shall be employed
or elected to employment as a superintendent, principal or teacher
in any public school in Arkansas, or as an instructor, professor or
teacher in any public institution of higher learning in that State
until such person shall have submitted to the appropriate
Page 364 U. S. 481
hiring authority an affidavit listing all organizations to which
he at the time belongs and to which he has belonged during the past
five years, and also listing all organizations to which he at the
time is paying regular dues or is making regular contributions, or
to which within the past five years he has paid such dues or made
such contributions. The Act further provides, among other things,
that any contract entered into with any person who has not filed
the prescribed affidavit shall be void; that no public moneys shall
be paid to such person as compensation for his services, and that
any such funds so paid may be recovered back either from the person
receiving such funds or from the board of trustees or other
governing body making the payment. The filing of a false affidavit
is denounced as perjury, punishable by a fine of not less than five
hundred nor more than one thousand dollars, and, in addition, the
person filing the false affidavit is to lose his teaching
174 F. Supp. 353-354. [Footnote
Page 364 U. S. 482
These provisions must be considered against the existing system
of teacher employment required by Arkansas law. Teachers there are
hired on a year-to-year basis. They are not covered by a civil
service system, and they have no job security beyond the end of
each school year. The closest approach to tenure is a statutory
provision for the automatic renewal of a teacher's contract if he
is not notified within ten days after the end of a school year that
the contract has not been renewed. Ark.1947 Stat.Ann. § 80-1304(b)
(1960); Wabbaseka School District No. 7 v. Johnson,
Ark. 982, 286 S.W.2d
The plaintiffs in the Federal District Court (appellants here)
were B. T. Shelton, a teacher employed in the Little Rock Public
School System, suing for himself and others similarly situated,
together with the Arkansas Teachers Association and its Executive
Secretary, suing for the benefit of members of the Association.
Shelton had been
Page 364 U. S. 483
employed in the Little Rock Special School District for
twenty-five years. In the spring of 1959, he was notified that,
before he could be employed for the 1959-1960 school year, he must
file the affidavit required by Act 10, listing all his
organizational connections over the previous five years. He
declined to file the affidavit, and his contract for the ensuing
school year was not renewed. At the trial, the evidence showed that
he was not a member of the Communist Party or of any organization
advocating the overthrow of the Government by force, and that he
was a member of the National Association for the Advancement of
Colored People. The court upheld Act 10, finding the information it
required was "relevant," and relying on several decisions of this
Court, particularly Garner v. Board of Public Works of Los
Angeles, 341 U. S. 716
Adler v. Board of Education, 342 U.
; Beilan v.
Page 364 U. S. 484
Board of Education, 357 U. S. 399
Lerner v. Casey, 357 U. S. 468
The plaintiffs in the state court proceedings (petitioners here)
were Max Carr, an associate professor at the University of
Arkansas, and Ernest T. Gephardt, a teacher at Central High School
in Little Rock, each suing for himself and others similarly
situated. Each refused to execute and file the affidavit required
by Act 10. Carr executed an affirmation [Footnote 3
] in which he listed his membership in
professional organizations, denied ever having been a member of any
subversive organization, and offered to answer any questions which
the University authorities might constitutionally ask touching upon
his qualifications as a teacher. Gephardt filed an affidavit
stating that he had never belonged to a subversive organization,
disclosing his membership in the Arkansas Education Association and
the American Legion, and also offering to answer any questions
which the school authorities might constitutionally ask touching
upon his qualifications as a teacher. Both were advised that their
failure to comply with the requirements of Act 10 would make
impossible their reemployment as teachers for the following school
year. The Supreme Court of Arkansas upheld the constitutionality of
Act 10, on its face and as applied to the petitioners. 231 Ark.
641, 331 S.W.2d
It is urged here, as it was unsuccessfully urged throughout the
proceedings in both the federal and state courts, that Act 10
deprives teachers in Arkansas of their
Page 364 U. S. 485
rights to personal, associational, and academic liberty,
protected by the Due Process Clause of the Fourteenth Amendment
from invasion by state action. In considering this contention, we
deal with two basic postulates.
There can be no doubt of the right of a State to
investigate the competence and fitness of those whom it hires to
teach in its schools, as this Court before now has had occasion to
"A teacher works in a sensitive area in a school room. There he
shapes the attitude of young minds towards the society in which
they live. In this, the state has a vital concern."
Adler v. Board of Education, 342 U.
, 342 U. S. 493
"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."
Beilan v. Board of Education, 357 U.
, 357 U. S. 406
This controversy is thus not of a pattern with such cases as
NAACP v. Alabama, 357 U. S. 449
Bates v. Little Rock, 361 U. S. 516
those cases, the Court held that there was no substantially
relevant correlation between the governmental interest asserted and
the State's effort to compel disclosure of the membership lists
involved. Here, by contrast, there can be no question of the
relevance of a State's inquiry into the fitness and competence of
its teachers. [Footnote 5
It is not disputed that to compel a teacher to
disclose his every associational tie is to impair
Page 364 U. S. 486
that teacher's right of free association, a right closely allied
to freedom of speech and a right which, like free speech, lies at
the foundation of a free society. De Jonge v. Oregon,
299 U. S. 353
299 U. S. 364
Bates v. Little Rock, supra,
at 361 U. S.
-5522-523. Such interference with personal freedom is
conspicuously accented when the teacher serves at the absolute will
of those to whom the disclosure must be made -- those who any year
can terminate the teacher's employment without bringing charges,
without notice, without a hearing, without affording an opportunity
The statute does not provide that the information it requires be
kept confidential. Each school board is left free to deal with the
information as it wishes. [Footnote
] The record contains evidence to indicate that fear of public
disclosure is neither theoretical nor groundless. [Footnote 7
] Even if there were no disclosure
to the general public, the pressure upon a teacher to avoid any
ties which might displease those who control his professional
destiny would be constant and heavy. Public exposure, bringing with
it the possibility of public pressures upon school boards to
discharge teachers who belong to unpopular or minority
Page 364 U. S. 487
organizations, would simply operate to widen and aggravate the
impairment of constitutional liberty.
The vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools.
"By limiting the power of the States to interfere with freedom
of speech and freedom of inquiry and freedom of association, the
Fourteenth Amendment protects all persons, no matter what their
calling. But, in view of the nature of the teacher's relation to
the effective exercise of the rights which are safeguarded by the
Bill of Rights and by the Fourteenth Amendment, inhibition of
freedom of thought, and of action upon thought, in the case of
teachers brings the safeguards of those amendments vividly into
operation. Such unwarranted inhibition upon the free spirit of
teachers . . . has an unmistakable tendency to chill that free play
of the spirit which all teachers ought especially to cultivate and
practice; it makes for caution and timidity in their associations
by potential teachers."
Wieman v. Updegraff, 344 U. S. 183
344 U. S. 195
"Scholarship cannot flourish in an atmosphere of suspicion and
distrust. Teachers and students must always remain free to inquire,
to study and to evaluate. . . ."
Sweezy v. New Hampshire, 354 U.
, 354 U. S.
The question to be decided here is not whether the State of
Arkansas can ask certain of its teachers about all their
organizational relationships. It is not whether the State can ask
all of its teachers about certain of their associational ties. It
is not whether teachers can be asked how many organizations they
belong to, or how much time they spend in organizational activity.
The question is whether the State can ask every one of its teachers
to disclose every single organization with which he has
Page 364 U. S. 488
been associated over a five-year period. The scope of the
inquiry required by Act 10 is completely unlimited. The statute
requires a teacher to reveal the church to which he belongs, or to
which he has given financial support. It requires him to disclose
his political party, and every political organization to which he
may have contributed over a five-year period. It requires him to
list, without number, every conceivable kind of associational tie
-- social, professional, political, avocational, or religious. Many
such relationships could have no possible bearing upon the
teacher's occupational competence or fitness.
In a series of decisions, this Court has held that, even though
the governmental purpose be legitimate and substantial, that
purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved.
] The breadth of
legislative abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose. [Footnote 9
In Lovell v. Griffin, 303 U. S. 444
Court invalidated an ordinance prohibiting all distribution of
literature at any time or place in Griffin, Georgia, without a
license, pointing out that so broad an interference was unnecessary
to accomplish legitimate municipal aims. In
Page 364 U. S. 489
Schneider v. State, 308 U. S. 147
Court dealt with ordinances of four different municipalities which
either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the Court noted that,
where legislative abridgment of "fundamental personal rights and
liberties" is asserted,
"the courts should be astute to examine the effect of the
challenged legislation. Mere legislative preferences or beliefs
respecting matters of public convenience may well support
regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights
so vital to the maintenance of democratic institutions."
308 U.S. at 308 U. S. 161
In Cantwell v. Connecticut, 310 U.
, the Court said that
"[c]onduct remains subject to regulation for the protection of
society,' but pointed out that, in each case, 'the power to
regulate must be so exercised as not, in attaining a permissible
end, unduly to infringe the protected freedom."
310 U.S. at 310 U. S. 304
Illustrations of the same constitutional principle are to be found
in many other decisions of the Court, among them Martin v.
Struthers, 319 U. S. 141
Saia v. New York, 334 U. S. 558
Kunz v. New York, 340 U. S. 290
As recently as last Term, we held invalid an ordinance
prohibiting the distribution of handbills because the breadth of
its application went far beyond what was necessary to achieve a
legitimate governmental purpose. Talley v. California,
362 U. S. 60
that case, the Court noted that it had been
"urged that this ordinance is aimed at providing a way to
identify those responsible for fraud, false advertising and libel.
Yet the ordinance is in no manner so limited. . . . Therefore we do
not pass on the validity of an ordinance limited to prevent these
or any other supposed evils. This ordinance simply bars all
handbills under all circumstances anywhere that do not have the
names and addresses printed on them in the place the ordinance
362 U.S. at 362 U. S.
Page 364 U. S. 490
The unlimited and indiscriminate sweep of the statute now before
us brings it within the ban of our prior cases. The statute's
comprehensive interference with associational freedom goes far
beyond what might be justified in the exercise of the State's
legitimate inquiry into the fitness and competency of its teachers.
The judgments in both cases must be reversed.
It is so ordered.
* Together with No. 83, Carr et al. v. Young et al.,
certiorari to the Supreme Court of Arkansas.
The statute is in seven sections. Section 1 provides:
"It is hereby declared that the purpose of this act is to
provide assistance in the administration and financing of the
public schools of Arkansas, and institutions of higher learning
supported wholly or in part by public funds, and it is hereby
determined that it will be beneficial to the public schools and
institutions of higher learning and the State of Arkansas, if
certain affidavits of membership are required as hereinafter
Section 2 provides:
"No superintendent, principal, or teacher shall be employed or
elected in any elementary or secondary school by the district
operating such school, and no instructor, professor, or other
teacher shall be employed or elected in any institution of higher
learning, or other educational institution supported wholly or in
part by public funds, by the trustees or governing authority
thereof, until, as a condition precedent to such employment, such
superintendent, principal, teacher, instructor or professor shall
have filed with such board of trustees or governing authority an
affidavit as to the names and addresses of all incorporated and/or
unincorporated associations and organizations that such
superintendent, principal, teacher, instructor or professor is or
within the past five years has been a member of, or to which
organization or association such superintendent, principal,
teacher, instructor, professor, or other teacher is presently
paying, or within the past five years has paid regular dues, or to
which the same is making or within the past five years has made
Section 3 sets out the form of affidavit to be used.
Section 4 provides:
"Any contract entered into by any board of any school district,
board of trustees of any institution of higher learning, or other
educational institution supported wholly or in part by public
funds, or by any governing authority thereof, with any
superintendent, principal, teacher, instructor, professor, or other
instructional personnel, who shall not have filed the affidavit
required in Section 2 hereof prior to the employment or election of
such person and prior to the making of such contracts, shall be
null and void and no funds shall be paid under said contract to
such superintendent, principal, teacher, instructor, professor, or
other instructional personnel; any funds so paid under said
contract to such superintendent, principal, teacher, instructor,
professor, or other instructional personnel, may be recovered from
the person receiving the same and/or from the board of trustees or
other governing authority by suit filed in the circuit court of the
county in which such contract was made, and any judgment entered by
such court in such cause of action shall be a personal judgment
against the defendant therein and upon the official bonds made by
such defendants, if any such bonds be in existence."
Section 5 provides that a teacher filing a false affidavit shall
be guilty of perjury, punishable by a fine, and shall forfeit his
license to teach in any school or other institution of learning
supported wholly or in part by public funds.
Section 6 is a separability provision.
Section 7 is an emergency clause, reading in part as
"It is hereby determined that the decisions of the United States
Supreme Court in the school segregation cases require solution of a
great variety of local public school problems of considerable
complexity immediately and which involve the health, safety and
general welfare of the people of the State of Arkansas, and that
the purpose of this act is to assist in the solution of these
problems and to provide for the more efficient administration of
In the same proceeding, the court held constitutionally invalid
an Arkansas statute making it unlawful for any member of the
National Association for the Advancement of Colored People to be
employed by the State of Arkansas or any of its subdivisions.
The affirmation recited that Carr was "conscientiously opposed
to taking an oath or swearing in any form. . . ."
The actual holdings in Adler
involving the validity of teachers' discharges, are not relevant to
the present case.
The declared purpose of Act 10 is "to provide assistance in the
administration and financing of the public schools. . . ." The
declared justification for the emergency clause is "to assist in
the solution" of problems raised by "the decisions of the United
States Supreme Court in the school segregation cases." See
But neither the breadth
and generality of the declared purpose nor the possible irrelevance
of the emergency provision detracts from the existence of an actual
relevant state interest in the inquiry.
The record contains an opinion of the State Attorney General
"it is an administrative determination, to be made by the
respective Boards, as to the disclosure of information contained in
The Supreme Court of Arkansas has held only that "the affidavits
not be opened to public inspection. . . ." 231 Ark.
641, 646, 331 S.W.2d
, 704. (Emphasis added.)
In the state court proceedings, a witness who was a member of
the Capital Citizens Council testified that his group intended to
gain access to some of the Act 10 affidavits with a view to
eliminating from the school system persons who supported
organizations unpopular with the group. Among such organizations,
he named the American Civil Liberties Union, the Urban League, the
American Association of University Professors, and the Women's
Emergency Committee to Open Our Schools.
In other areas, involving different constitutional issues, more
administrative leeway has been thought allowable in the interest of
increased efficiency in accomplishing a clearly constitutional
central purpose. See Purity Extract Co. v. Lynch,
226 U. S. 192
Jacob Ruppert v. Caffey, 251 U. S. 264
Schlesinger v. Wisconsin, 270 U.
, 270 U. S. 241
(dissenting opinion); Queenside Hills Co. v. Saxl,
328 U. S. 80
328 U. S. 83
But cf. Dean Milk Co. v. Madison, 340 U.
Freund, Competing Freedoms in American
Constitutional Law, 13 U. of Chicago Conference Series 26, 32-33;
Richardson, Freedom of Expression and the Function of Courts, 65
Harv.L.Rev. 1, 6, 23-24; Comment, Legislative Inquiry into
Political Activity: First Amendment Immunity From Committee
Interrogation, 65 Yale L.J. 1159, 1173-1175.
MR. JUSTICE FRANKFURTER, dissenting.
As one who has strong views against crude intrusions by the
state into the atmosphere of creative freedom in which alone the
spirit and mind of a teacher can fruitfully function, I may find
displeasure with the Arkansas legislation now under review. But, in
maintaining the distinction between private views and
constitutional restrictions, I am constrained to find that it does
not exceed the permissible range of state action limited by the
Fourteenth Amendment. By way of emphasis, I therefore add a few
words to the dissent of MR. JUSTICE HARLAN, in which I concur.
It is essential, at the outset, to establish what is not
involved in this litigation:
(1) As the Court recognizes, this is not a case where, as in
NAACP v.Alabama, 357 U. S. 449
Bates v. Little Rock, 361 U. S. 516
State, asserting the power to compel disclosure of organizational
affiliations, can show no rational relation between disclosure and
a governmental interest justifying it. Those cases are relevant
here only because of their recognition that an interest in privacy,
in nondisclosure, may, under appropriate circumstances, claim
constitutional protection. The question here is whether that
interest is overborne by a countervailing public interest. To this
concrete, limited question -- whether the State's interest in
knowing the nature
Page 364 U. S. 491
of the organizational activities of teachers employed by it or
by institutions which it supports, as a basis for appraising the
fitness of those teachers for the positions which they hold,
outweighs the interest recognized in NAACP
-- those earlier decisions themselves give no
(2) The Court's holding that the Arkansas statute is
unconstitutional does not, apparently, rest upon the threat that
the information which it requires of teachers will be revealed to
the public. In view of the opinion of the Supreme Court of
Arkansas, decision here could not, I believe, turn on a claim that
the teachers' affidavits will not remain confidential. That court
has expressly said that,
"[i]nasmuch as the validity of the act depends upon its being
construed as a bona fide
legislative effort to provide
school boards with needed information, it necessarily follows that
the affidavits need not be opened to public inspection, for the
permissible purpose of the statute is to enlighten the school board
231 Ark. 641, 646, 331 S.W.2d
, 704. If the validity of the statute depended on this
matter, the pronouncement of the State's highest judicial organ
would have to be read as establishing -- the earlier view of the
State Attorney General notwithstanding -- that the statute does not
authorize the making public of the affidavits. Even were the
Arkansas court's language far more ambiguous than it is, it would
be our duty so to understand its opinion, in accordance with the
principle that, "[s]o far as statutes fairly may be construed in
such a way as to avoid doubtful constitutional questions, they
should be so construed." Fox v. Washington, 236 U.
, 236 U. S.
(3) This is not a case in which Lovell v. Griffin,
303 U. S. 444
Cantwell v. Connecticut, 310 U. S. 296
Saia v. New York, 334 U. S. 558
Kunz v. New York, 340 U. S. 290
call for condemnation of the "breadth" of the statute. Those
decisions struck down licensing laws
Page 364 U. S. 492
which vested in administrative officials a power of censorship
over communications not confined within standards designed to curb
the dangers of arbitrary or discriminatory official action. The
"breadth" with which the cases were concerned was the breadth of
unrestricted discretion left to a censor, which permitted him to
make his own subjective opinions the practically unreviewable
measure of permissible speech. [Footnote 2/1
] Nor is this a case of the nature of
Thornhill v. Alabama, 310 U. S. 88
Herndon v. Lowry, 301 U. S. 242
] involving penal
statutes which the Court found impermissibly "broad" in quite
another sense. Prohibiting, indiscriminately, activity within and
without the sphere of the Fourteenth Amendment's protection of free
expression, those statutes had the double vice of deterring the
exercise of constitutional freedoms by making the uncertain line of
the Amendment's application determinative of criminality, and of
prescribing indefinite standards of guilt, thereby allowing the
potential vagaries and prejudices of juries, effectively insulated
against control by reviewing courts, the power to intrude upon the
protected sphere. The statute challenged in the present cases
involves neither administrative discretion to censor nor vague,
overreaching tests of criminal responsibility.
Page 364 U. S. 493
Where state assertions of authority are attacked as
impermissibly restrictive upon thought, expression, or association,
the existence vel non
of other possible less restrictive
means of achieving the object which the State seeks is, of course,
a constitutionally relevant consideration. This is not because some
novel, particular rule of law obtains in cases of this kind.
Whenever the reasonableness and fairness of a measure are at issue
-- as they are in every case in which this Court must apply the
standards of reason and fairness, with the appropriate scope to be
given those concepts, in enforcing the Due Process Clause of the
Fourteenth Amendment as a limitation upon state action -- the
availability or unavailability of alternative methods of proceeding
is germane. Thus, a State may not prohibit the distribution of
literature on its cities' streets as a means of preventing
littering when the same end might be achieved with only slightly
greater inconvenience by applying the sanctions of the penal law
not to the pamphleteer who distributes the paper, but to the
recipient who crumples it and throws it away. Hague v.
C.I.O., 307 U. S. 496
Schneider v. State, 308 U. S. 147
Jamison v. Texas, 318 U. S. 413
may a State protect its population from the dangers and incitements
of salacious books by restricting the reading matter of adults to
that which would be harmless to the susceptible mind of a child.
Butler v. Michigan, 352 U. S. 380
And see De Jonge v. Oregon, 299 U.
; Talley v. California, 362 U. S.
. [Footnote 2/3
Page 364 U. S. 494
of feasible alternative modes of regulation in these cases did
not imply that the Court might substitute its own choice among
alternatives for that of a state legislature, or that the States
were to be restricted to the "narrowest" workable means of
accomplishing an end. See Prince v. Massachusetts,
321 U. S. 158
321 U. S.
-170. Consideration of alternatives may focus the
precise exercise of state legislative authority which is tested in
this Court by the standard of reasonableness, but it does not alter
or displace that standard. The issue remains whether, in light of
the particular kind of restriction upon individual liberty which a
regulation entails, it is reasonable for a legislature to choose
that form of regulation, rather than others less restrictive. To
that determination, the range of judgment easily open to a
legislature in considering the relative degrees of efficiency of
alternative means in achieving the end it seeks is pertinent.
In the present case, the Court strikes down an Arkansas statute
requiring that teachers disclose to school officials all of their
organizational relationships on the ground that "Many such
relationships could have no possible bearing upon the teacher's
occupational competence or fitness." Granted that a given teacher's
membership in the First Street Congregation is, standing alone, of
little relevance to what may rightly be expected of a teacher, is
that membership equally irrelevant when it is discovered that the
teacher is, in fact, a member of the First Street Congregation and
the Second Street Congregation and the Third Street Congregation
and the 4-H Club and the 3-H Club and half a dozen other groups?
Presumably, a teacher may have so many divers associations, so many
divers commitments, that they consume his time and energy and
interest at the expense of his work or even of his professional
dedication. Unlike wholly individual interests, organizational
connections -- because they involve obligations undertaken with
relation to other persons
Page 364 U. S. 495
-- may become inescapably demanding and distracting. Surely, a
school board is entitled to inquire whether any of its teachers has
placed himself, or is placing himself, in a condition where his
work may suffer. Of course, the State might ask: "To how many
organizations do you belong?" or "How much time do you expend at
organizational activity?" But the answer to such questions could
reasonably be regarded by a state legislature as insufficient, both
because the veracity of the answer is more difficult to test in
cases where doubts as to veracity may arise than in the case of the
answers required by the Arkansas statute, and because an estimate
of time presently spent in organizational activity reveals nothing
as to the quality and nature of that activity, upon the basis of
which, necessarily, judgment or prophesy of the extent of future
involvement must be based. A teacher's answers to the questions
which Arkansas asks, moreover, may serve the purpose of making
known to school authorities persons who come into contact with the
teacher in all of the phases of his activity in the community, and
who can be questioned, if need be, concerning the teacher's conduct
in matters which this Court can certainly not now say are lacking
in any pertinence to professional fitness. It is difficult to
understand how these particular ends could be achieved by asking
"certain of [the State's] teachers about all their organizational
relationships," or "all of its teachers about certain of their
associational ties," or all of its teachers how many associations
currently involve them, or during how many hours, and difficult,
therefore, to appreciate why the Court deems unreasonable and
forbids what Arkansas does ask.
If I dissent from the Court's disposition in these cases, it is
not that I put a low value on academic freedom. See Wieman v.
Updegraff, 344 U. S. 183
344 U. S. 194
(concurring opinion); Sweezy v. New Hampshire,
354 U. S. 234
354 U. S. 255
(concurring opinion). It is because that very freedom,
Page 364 U. S. 496
in its most creative reaches, is dependent in no small part upon
the careful and discriminating selection of teachers. This process
of selection is an intricate affair, a matter of fine judgment,
and, if it is to be informed, it must be based upon a comprehensive
range of information. I am unable to say, on the face of this
statute, that Arkansas could not reasonably find that the
information which the statute requires -- and which may not be
otherwise acquired than by asking the question which it asks -- is
germane to that selection. Nor, on this record, can I attribute to
the State a purpose to employ the enactment as a device for the
accomplishment of what is constitutionally forbidden. Of course, if
the information gathered by the required affidavits is used to
further a scheme of terminating the employment of teachers solely
because of their membership in unpopular organizations, that use
will run afoul of the Fourteenth Amendment. It will be time enough,
if such use is made, to hold the application of the statute
unconstitutional. See Yick Wo v. Hopkins, 118 U.
. Because I do not find that the disclosure of
teachers' associations to their school boards is, without more,
such a restriction upon their liberty, or upon that of the
community, as to overbalance the State's interest in asking the
question, I would affirm the judgments below.
I am authorized to say that MR. JUSTICE CLARK, MR. JUSTICE
HARLAN and MR. JUSTICE WHITAKER agree with this opinion.
See also Hague v. C.I.O., 307 U.
; Schneider v. State, 308 U.
(the Irvington ordinance); Largent v.
Texas, 318 U. S. 418
Jones v. Opelika, 319 U. S. 103
vacating 316 U. S. 584
Opelika ordinance); Niemotko v. Maryland, 340 U.
; Joseph Burstyn, Inc. v. Wilson,
343 U. S. 495
Gellin v. Texas, 343 U. S. 960
Superior Films, Inc. v. Department of Education,
346 U. S. 587
Staub v. Baxley, 355 U. S. 313
cf. Marsh v. Alabama, 326 U. S. 501
Tucker v. Texas, 326 U. S. 517
common law count in the Cantwell
considerations similar to those which were determinative of the
decisions cited in text and note, at 364
fn2/2|>note 2, infra.
See also Stromberg v. California, 283 U.
; Winters v. New York, 333 U.
Language characterizing state statutes as overly broad has
sometimes been found in opinions where it was unnecessary to the
result, and merely meant to express the idea that whatever state
interest was there asserted as underlying a regulation was
insufficient to justify the regulation's application to particular
circumstances fairly within the Fourteenth Amendment's protection.
Compare Thomas v. Collins, 323 U.
, with Fiske v. Kansas, 274 U.
. Compare Martin v. Struthers,
319 U. S. 141
with Breard v. Alexandria, 341 U.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, MR. JUSTICE
CLARK and MR. JUSTICE WHITAKER join, dissenting.
Of course, this decision has a natural tendency to enlist
support, involving as it does an unusual statute that touches
constitutional rights whose protection in the context of the racial
situation in various parts of the country
Page 364 U. S. 497
demands the unremitting vigilance of the courts. Yet that very
circumstance also serves to remind of the restraints that attend
constitutional adjudication. It must be emphasized that neither of
these cases actually presents an issue of racial discrimination.
The statute, on its face, applies to all Arkansas teachers,
irrespective of race, and there is no showing that it has been
The issue is whether, consistently with the Fourteenth
Amendment, a State may require teachers in its public schools or
colleges to disclose, as a condition precedent to their initial or
continued employment, all organizations to which they have
belonged, paid dues, or contributed within the past five years.
Since I believe that such a requirement cannot be said to
transgress the constitutional limits of a State's conceded
authority to determine the qualifications of those serving it as
teachers, I am bound to consider that Arkansas had the right to
pass the statute in question, and therefore conceive it my duty to
The legal framework in which the issue must be judged is clear.
The rights of free speech and association embodied in the "liberty"
assured against state action by the Fourteenth Amendment (see
De Jonge v. Oregon, 299 U. S. 353
299 U. S. 364
Gitlow v. New York, 268 U. S. 652
268 U. S. 672
dissenting opinion of Holmes, J.) are not absolute. Near v.
Minnesota, 283 U. S. 697
283 U. S. 708
Whitney v. California, 274 U. S. 357
274 U. S. 373
(concurring opinion of Brandeis, J.). Where official action is
claimed to invade these rights, the controlling inquiry is whether
such action is justifiable on the basis of a superior governmental
interest to which such individual rights must yield. When the
action complained of pertains to the realm of investigation, our
inquiry has a double aspect: first, whether the investigation
relates to a legitimate governmental purpose; second, whether,
judged in the light of that purpose, the questioned
Page 364 U. S. 498
action has substantial relevance thereto. See Barenblatt v.
United States, 360 U. S. 109
Uphaus v. Wyman, 360 U. S. 72
In the two cases at hand, I think both factors are satisfied. It
is surely indisputable that a State has the right to choose its
teachers on the basis of fitness. And I think it equally clear, as
the Court appears to recognize, that information about a teacher's
associations may be useful to school authorities in determining the
moral, professional, and social qualifications of the teacher, as
well as in determining the type of service for which he will be
best suited in the educational system. See Adler v. Board of
Education, 342 U. S. 485
Beilan v. Board of Public Education, 357 U.
; see also Slochower v. Board of
Education, 350 U. S. 551
Furthermore, I take the Court to acknowledge that, agreeably to our
previous decisions, the State may enquire into associations to the
extent that the resulting information may be in aid of that
legitimate purpose. These cases therefore do not present a
situation such as we had in NAACP v. Alabama, 357 U.
, and Bates v. Little Rock, 361 U.
, where the required disclosure bears no
substantial relevance to a legitimate state interest.
Despite these considerations, this statute is stricken down
because, in the Court's view, it is too broad, because it asks more
than may be necessary to effectuate the State's legitimate
interest. Such a statute, it is said, cannot justify the inhibition
on freedom of association which so blanket an inquiry may entail.
Cf. NAACP v. Alabama, supra; Bates v. Little Rock,
I am unable to subscribe to this view, because I believe it
impossible to determine a priori
the place where the line
should be drawn between what would be permissible inquiry and
overbroad inquiry in a situation like this. Certainly the Court
does not point that place out. There can be little doubt that much
of the associational information
Page 364 U. S. 499
called for by the statute will be of little or no use whatever
to the school authorities, but I do not understand how those
authorities can be expected to fix in advance the terms of their
enquiry so that it will yield only relevant information.
I do not mean to say that alternatives such as an enquiry
limited to the names of organizations of whose character the State
is presently aware, or to a class of organizations defined by their
purposes, would not be more consonant with a decent respect for the
privacy of the teacher, nor that such alternatives would be utterly
unworkable. I do see, however, that these alternatives suffer from
deficiencies so obvious where a State is bent upon discovering
everything which would be relevant to its proper purposes, that I
cannot say that it must, as a matter of constitutional compulsion,
adopt some such means instead of those which have been chosen
Finally, I need hardly say that, if it turns out that this
statute is abused, either by an unwarranted publicizing of the
required associational disclosures or otherwise, we would have a
different kind of case than those presently before us. See
Lassiter v. Northampton Elections Board, 360 U. S.
, 360 U. S. 53
All that is now here is the validity of the statute on its face,
and I am unable to agree that, in this posture of things, the
enactment can be said to be unconstitutional.
I would affirm in both cases.