Whitehill v. Elkins,
389 U.S. 54 (1967)

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U.S. Supreme Court

Whitehill v. Elkins, 389 U.S. 54 (1967)

Whitehill v. Elkins

No. 25

Argued October 16, 1967

Decided November 6, 1967

389 U.S. 54


Appellant, who had been offered a University of Maryland teaching position, brought this suit for declaratory relief challenging the constitutionality of a state "loyalty oath," which he refused to take. The oath, drafted by the Attorney General and approved by the Board of Regents, contains a certification that an applicant for public employment is not "engaged in one way or another in the attempt to overthrow the Government . . . by force or violence." Section 11 of the Ober Act authorizes state agencies to fix procedures to ascertain that a prospective employee is not a "subversive person," a term which, as defined in §§ 1 and 13, reaches one who is a member of a subversive organization which would alter, overthrow, or destroy the Government by revolution, force, or violence. A three-judge District Court dismissed the complaint.


1. Since the authority to prescribe oaths is provided by § 11 of the Ober Act, which is tied to §§ 1 and 13, the oath here must be considered not in isolation, but with reference to §§ 1 and 13. Pp. 389 U. S. 56-57.

2. Sections 1 and 13 violate due process requirements of the Fourteenth Amendment, since they are unconstitutionally vague and overbroad by not distinctly delineating between permissible and impermissible conduct in the sensitive and important area of academic freedom. Pp. 389 U. S. 57-62.

(a) In Gerende v. Election Board, 341 U. S. 56, which involved application of an oath to candidates in Maryland for public office, this Court did not reach the question now presented. P. 389 U. S. 58.

(b) In the light of the gloss placed upon the Act by the Maryland courts, it is uncertain whether only those members of a "subversive" group are barred who seek to overthrow or destroy the Government by force or violence. Thus, a prospective employee could not know, save as he risked a perjury prosecution,

Page 389 U. S. 55

whether as a member of a group aiming through violence to overthrow the Government he would "in one way or another" be engaged in an attempt at violent overthrow even though he was ignorant of the group's real aims. Pp. 389 U. S. 57-62.

258 F.Supp. 589, reversed.

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