Section 903 of the New York City Charter provides that, whenever
a city employee utilizes the privilege against self-incrimination
to avoid answering before a legislative committee, a question
relating to his official conduct, his employment shall terminate. A
teacher in a college operated by the City was summarily discharged
under this section, without notice or hearing, because, while
testifying before a federal legislative committee, he refused to
answer questions concerning his membership in the Communist Party
in 1940 and 1941 on the ground that his answers might tend to
incriminate him. Under the New York Education Law, he was entitled
to tenure, and could be discharged only for cause and after notice,
hearing and appeal.
Held: in the circumstances of this case, his summary
dismissal violated the Due Process Clause of the Fourteenth
Amendment. Pp.
350 U. S.
552-559.
(a) The privilege against self-incrimination would be reduced to
a hollow mockery if its exercise could be taken as equivalent
either to a confession of guilt or a conclusive presumption of
perjury. Pp.
350 U. S.
556-558.
(b) On the record in this case, it cannot be claimed that the
Board's action in dismissing the teacher was part of a
bona
fide attempt to gain needed and relevant information regarding
his qualifications for his position. Pp.
350 U. S.
558-559.
(c) Since no inference of guilt was possible from the claim of
the privilege against self-incrimination before the federal
committee, the discharge falls of its own weight as wholly without
support. P.
350 U. S.
559.
(d)
Adler v. Board of Education, 342 U.
S. 485, and
Garner v. Los Angeles Board,
341 U. S. 716,
distinguished. Pp.
350 U. S.
555-556.
(e)
Wieman v. Updegraff, 344 U.
S. 183, followed. Pp.
350 U. S.
556-558.
306 N.Y. 532, 119 N.E.2d 373, 307 N.Y. 806, 121 N.E.2d 629,
reversed and remanded.
Page 350 U. S. 552
MR. JUSTICE CLARK.
This appeal brings into question the constitutionality of § 903
of the Charter of the City of New York. That section provides that
whenever an employee of the City utilizes the privilege against
self-incrimination to avoid answering a question relating to his
official conduct,
"his term or tenure of office or employment shall terminate and
such office or employment shall be vacant, and he shall not be
eligible to election or appointment to any office or employment
under the city or any agency. [
Footnote 1]"
Appellant Slochower invoked the privilege against
self-incrimination
Page 350 U. S. 553
under the Fifth Amendment before an investigating committee of
the United States Senate, and was summarily discharged from his
position as associate professor at Brooklyn College, an institution
maintained by the City of New York. He now claims that the charter
provision, as applied to him, violates both the Due Process and
Privileges and Immunities Clauses of the Fourteenth Amendment.
On September 24, 1952, the Internal Security Subcommittee of the
Committee on the Judiciary of the United States Senate held open
hearings in New York City. The investigation, conducted on a
national scale, related to subversive influences in the American
educational system. At the beginning of the hearings, the Chairman
stated that education was primarily a state and local function, and
therefore the inquiry would be limited to "considerations affecting
national security, which are directly within the purview and
authority of the subcommittee." Hearings before the Subcommittee to
Investigate the Administration of the Internal Security Act and
other Internal Security Laws of Senate Committee on the Judiciary,
82d Cong., 2d sess. 1. Professor Slochower, when called to testify,
stated that he was not a member of the Communist Party, and
indicated complete willingness to answer all questions about his
associations or political beliefs since 1941. But he refused to
answer questions concerning his membership during 1940 and 1941 on
the ground that his answers might tend to incriminate him. The
Chairman of the Senate Subcommittee accepted Slochower's claim as a
valid assertion of an admitted constitutional right.
It had been alleged that Slochower was a Communist in 1941 in
the testimony of one Bernard Grebanier before the Rapp-Coudert
Committee of the New York Legislature.
See Report of the
Subcommittee of the Joint Legislative Committee to Investigate
Procedures and Methods of
Page 350 U. S. 554
Allocating State Moneys for Public School Purposes and
Subversive Activities, Legislative Document (1942), No. 49, State
of New York at 318. Slochower testified that he had appeared twice
before the Rapp-Coudert Committee, and had subsequently testified
before the Board of Faculty relating to this charge. He also
testified that he had answered questions at these hearings relating
to his Communist affiliations in 1940 and 1941.
Shortly after testifying before the Internal Security
Subcommittee, Slochower was notified that he was suspended from his
position at the College; three days later, his position was
declared vacant "pursuant to the provisions of Section 903 of the
New York City charter."
*
Slochower had 27 years' experience as a college teacher, and was
entitled to tenure under state law. McKinney's New York Laws, c.
16, Education Law, § 6206(2). Under this statute, appellant may be
discharged only for cause, and after notice, hearing, and appeal. §
6206(10). The Court of Appeals of New York, however, has
authoritatively interpreted § 903 to mean that "The assertion of
the privilege against self-incrimination is equivalent to a
resignation."
Daniman v. Board of Education of City of New
York, 306 N.Y. 532, 538, 119 N.E.2d 373, 377. Dismissal under
this provision is therefore automatic, and there is no right to
charges, notice, hearing, or opportunity to explain.
The Supreme Court of New York, County of Kings, concluded that
appellant's behavior fell within the scope of § 903, and upheld its
application here. 202 Misc. 915, 118 N.Y.S.2d 487. The Appellate
Division, 282 App.Div. 718, 122 N.Y.S.2d 286, reported
sub nom.
Shlakman v. Board of Higher Education of City of New York, and
the Court of Appeals, reported
Page 350 U. S. 555
sub nom. Daniman v. Board of Education of City of New York,
supra, each by a divided court, affirmed. We noted probable
jurisdiction, 348 U.S. 935, because of the importance of the
question presented. [
Footnote
2]
Slochower argues that § 903 abridges a privilege or immunity of
a citizen of the United States, since it, in effect, imposes a
penalty on the exercise of a federally guaranteed right in a
federal proceeding. It also violates due process, he argues,
because the mere claim of privilege under the Fifth Amendment does
not provide a reasonable basis for the State to terminate his
employment. Appellee insists that no question of "privileges or
immunities" was raised or passed on below, and therefore directs
its argument solely to the proposition that § 903 does not operate
in an arbitrary or capricious manner. We do not decide whether a
claim under the "privileges or immunities" clause was considered
below, since we conclude the summary dismissal of appellant in the
circumstances of this case violates due process of law.
The problem of balancing the State's interest in the loyalty of
those in its service with the traditional safeguards of individual
rights is a continuing one. To state that a person does not have a
constitutional right to government employment is only to say that
he must comply with reasonable, lawful, and nondiscriminatory terms
laid down by the proper authorities.
Adler v. Board of
Education, 342 U. S. 485,
upheld the New York Feinberg Law which authorized the public school
authorities to
Page 350 U. S. 556
dismiss employees who, after notice and hearing, were found to
advocate the overthrow of the Government by unlawful means, or who
were unable to explain satisfactorily membership in certain
organizations found to have that aim. [
Footnote 3] Likewise,
Garner v. Los Angeles
Board, 341 U. S. 716,
341 U. S. 720,
upheld the right of the city to inquire of its employees as to
"matters that may prove relevant to their fitness and suitability
for the public service," including their membership, past and
present, in the Communist Party or the Communist Political
Association. There, it was held that the city had power to
discharge employees who refused to file an affidavit disclosing
such information to the school authorities. [
Footnote 4]
But, in each of these cases, it was emphasized that the State
must conform to the requirements of due process. In
Wieman v.
Updegraff, 344 U. S. 183, we
struck down a so-called "loyalty oath" because it based
employability solely on the fact of membership in certain
organizations. We pointed out that membership itself may be
innocent, and held that the classification of innocent and guilty
together was arbitrary. [
Footnote
5] This case rests squarely on the proposition that
"constitutional protection does extend to the public servant
whose exclusion pursuant to a statute is patently arbitrary or
discriminatory."
344 U.S. at
344 U. S.
192.
Here, the Board, in support of its position, contends that only
two possible inferences flow from appellant's claim
Page 350 U. S. 557
of self-incrimination: (1) that the answering of the question
would tend to prove him guilty of a crime in some way connected
with his official conduct; or (2) that, in order to avoid answering
the question, he falsely invoked the privilege by stating that the
answer would tend to incriminate him, and thus committed perjury.
Either inference, it insists, is sufficient to justify the
termination of his employment. The Court of Appeals, however,
accepted the Committee's determination that the privilege had been
properly invoked, and it further held that no inference of
Communist Party membership could be drawn from such a refusal to
testify. It found the statute to impose merely a condition on
public employment, and affirmed the summary action taken in the
case. With this conclusion, we cannot agree.
At the outset, we must condemn the practice of imputing a
sinister meaning to the exercise of a person's constitutional right
under the Fifth Amendment. The right of an accused person to refuse
to testify, which had been in England merely a rule of evidence,
was so important to our forefathers that they raised it to the
dignity of a constitutional enactment, and it has been recognized
as "one of the most valuable prerogatives of the citizen."
Brown v. Walker, 161 U. S. 591,
161 U. S. 610.
We have reaffirmed our faith in this principle recently in
Quinn v. United States, 349 U. S. 155. In
Ullmann v. United States, 350 U.
S. 422, we scored the assumption that those who claim
this privilege are either criminals or perjurers. The privilege
against self-incrimination would be reduced to a hollow mockery if
its exercise could be taken as equivalent either to a confession of
guilt or a conclusive presumption of perjury. As we pointed out in
Ullmann, a witness may have a reasonable fear of
prosecution and yet be innocent of any wrongdoing. The privilege
serves to protect the innocent who otherwise might
Page 350 U. S. 558
be ensnared by ambiguous circumstances.
See Griswold,
The Fifth Amendment Today (1955).
With this in mind, we consider the application of § 903. As
interpreted and applied by the state courts, it operates to
discharge every city employee who invokes the Fifth Amendment. In
practical effect, the questions asked are taken as confessed, and
made the basis of the discharge. No consideration is given to such
factors as the subject matter of the questions, remoteness of the
period to which they are directed, or justification for exercise of
the privilege. It matters not whether the plea resulted from
mistake, inadvertence, or legal advice conscientiously given,
whether wisely or unwisely. The heavy hand of the statute falls
alike on all who exercise their constitutional privilege, the full
enjoyment of which every person is entitled to receive. Such action
falls squarely within the prohibition of
Wieman v. Updegraff,
supra.
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, or
government of the city, or . . . official conduct of city
employees." In this respect, the present case differs materially
from
Garner, 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.
Without attacking Professor Slochower's qualification for his
position in any manner, and apparently with full knowledge of the
testimony he had given some 12 years
Page 350 U. S. 559
before at the state committee hearing, the Board seized upon his
claim of privilege before the federal committee and converted it
through the use of § 903 into a conclusive presumption of guilt.
Since no inference of guilt was possible from the claim before the
federal committee, the discharge falls of its own weight as wholly
without support. There has not been the "protection of the
individual against arbitrary action" which Mr. Justice Cardozo
characterized as the very essence of due process.
Ohio Bell
Telephone Co. v. Public Utilities Commission, 301 U.
S. 292,
301 U. S.
302.
This is not to say that Slochower has a constitutional right to
be an associate professor of German at Brooklyn College. The State
has broad powers in the selection and discharge of its employees,
and it may be that proper inquiry would show Slochower's continued
employment to be inconsistent with a real interest of the State.
But there has been no such inquiry here. We hold that the summary
dismissal of appellant violates due process of law.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join the Court's
judgment and opinion, but also adhere to the views expressed in
their dissents in
Adler v. Board of Education and
Garner v. Los Angeles Board, supra, and to their
concurrences in
Wieman v. Updegraff, supra.
* [Reporter's Note: A sentence which was reported in the
Preliminary Print at p. 554, lines 13-18, was deleted by an order
of the Court entered May 28, 1956, 351 U.S. 944.]
[
Footnote 1]
The full text of § 903 provides:
"If any councilman or other officer or employee of the city
shall, after lawful notice or process, willfully refuse or fail to
appear before any court or judge, any legislative committee, or any
officer, board or body authorized to conduct any hearing or
inquiry, or having appeared shall refuse to testify or to answer
any question regarding the property, government or affairs of the
city or of any county included within its territorial limits, or
regarding the nomination, election, appointment or official conduct
of any officer or employee of the city or of any such county, on
the ground that his answer would tend to incriminate him, or shall
refuse to waive immunity from prosecution on account of any such
matter in relation to which he may be asked to testify upon any
such hearing or inquiry, his term or tenure of office or employment
shall terminate and such office or employment shall be vacant, and
he shall not be eligible to election or appointment to any office
or employment under the city or any agency."
[
Footnote 2]
Thirteen other individuals brought suit for reinstatement after
their dismissal for pleading the privilege against
self-incrimination in the same federal investigation. We dismissed
the appeal of these individuals "for want of a properly presented
federal question."
Daniman v. Board, 348 U.S. 933.
See
Daniman v. Board, 307 N.Y. 806, 121 N.E.2d 629, where the New
York Court of Appeals declined to amend its remittitur to state
that a federal question had been presented and passed on as to
these appellants, but did so amend its remittitur as to
Slochower.
[
Footnote 3]
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissented. MR. JUSTICE
FRANKFURTER dissented on grounds of standing and ripeness.
[
Footnote 4]
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissented. MR. JUSTICE
FRANKFURTER and MR. JUSTICE BURTON concurred in this aspect of the
case, but dissented from other portions of the decision in separate
opinions.
[
Footnote 5]
MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER concurred in
separate opinions in which MR. JUSTICE DOUGLAS joined. MR. JUSTICE
BURTON concurred in the result.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON and MR. JUSTICE
MINTON join, dissenting.
In reliance upon the Due Process Clause of our Constitution, the
Court strikes deep into the authority of New York to protect its
local governmental institutions from influences of officials whose
conduct does not meet
Page 350 U. S. 560
the declared state standards for employment. This New York City
Charter, § 903, adopted in 1936 to take effect in 1938, was
designed to eliminate from public employment individuals who
refused to answer legally authorized inquiries as to the "official
conduct of any officer or employee of the city . . . on the ground
that his answer would tend to incriminate him." Its provisions, as
applicable to Professor Slochower and others, have been upheld by
the Court of Appeals of New York under multi-pronged state grounds
of attack in the instances where he and other city teachers of New
York have sought to bar their removal from their positions.
[
Footnote 2/1]
The sole reliance of the Court for reversal of the New York
Court of Appeals is that § 903, as here applied, violates the Due
Process Clause of the Fourteenth Amendment to the Federal
Constitution. The Court of Appeals amended its remittitur to show
that it held federal due process was not violated. 307 N.Y. 806,
121 N.E.2d 629. In view of the conclusions of the Court of Appeals,
we need deal only with that problem. The Court of Appeals has
exclusive power to determine the reach of its own statute.
Page 350 U. S. 561
The Court finds it a denial of due process to discharge an
employee merely because he relied upon the Fifth Amendment plea of
self-incrimination to avoid answering questions which he would be
otherwise required to answer. We assert the contrary -- the city
does have reasonable ground to require its employees either to give
evidence regarding facts of official conduct within their knowledge
or to give up the positions they hold. Petitioners never contended
that error or inadvertence led them to refuse to answer. Their
contention is set out in the margin below. [
Footnote 2/2] Discharges under § 903 do not depend upon
any conclusion as to the guilt of the employee of some crime that
might be disclosed by his testimony or as to his guilt of perjury,
if really there was no prosecution to fear. We disagree with the
Court's assumption that § 903, as a practical matter, takes the
questions asked as confessed. Cities, like other employers, may
reasonably conclude that a refusal to furnish appropriate
information is enough to justify discharge. Legally authorized
bodies have a right to demand that citizens furnish facts pertinent
to official inquiries. The duty to respond may be refused for
personal protection against prosecution only, but such avoidance of
public duty to furnish information can properly
Page 350 U. S. 562
be considered to stamp the employee as a person unfit to hold
certain official positions. Such a conclusion is reinforced when
the claimant for protection has the role of instructor to youth.
The fact that the witness has a right to plead the privilege
against self-incrimination protects him against prosecution, but
not against the loss of his job. [
Footnote 2/3]
The Court may intend merely to hold that, since the facts of
Slochower's alleged Communist affiliations prior to 1941 were known
to the Board before the federal claim, and since the inquiries of
the Committee were asked for a purpose unrelated to his college
functions, therefore it was a denial of due process to vacate his
office. If so, its conclusion is likewise, we think, erroneous. We
agree that this case is not, like
Garner v. Los Angeles
Board, 341 U. S. 716, an
attempt to elicit information about professional qualifications.
But § 903 is directed at the propriety of employing a man who
refuses to give needed information to appropriate public
bodies.
Consideration of the meaning of "due process" under the
Fourteenth Amendment supports our position that § 903 of the City
Charter does not violate that concept. For this Court to hold that
state action in the field of its unchallenged powers violates the
due process of the Federal Constitution requires far more than mere
disagreement with the legal conclusions of state courts. To
require, as the Court does, that New York stay its hand in
discharging a teacher whom the city deems unworthy to occupy a
chair in its Brooklyn College demands that this Court say, if it
follows our prior cases, that the action of the Board in declaring
Professor Slochower's position
Page 350 U. S. 563
vacant was inconsistent with the fundamental principles of
liberty and justice which lie at the base of all our civil and
political institutions. [
Footnote
2/4] A denial of due process is "a practice repugnant to the
conscience of mankind." [
Footnote
2/5] Surely no such situation exists here.
Those charged with educational duties in a State bear heavy
responsibilities. Only a few years ago, in
Adler v. Board of
Education, 342 U. S. 485, we
upheld against three dissents the Feinberg Law of New York, making
ineligible for employment as a teacher in any public school a
member of any subversive organization, if he knew its purpose. The
argument that the "fact found bears no relation to the fact
presumed,"
i.e., "disqualification for employment," was
rejected. There also, the contention was denial of due process. We
said:
"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. One's associates, past
and present, as well as one's conduct, may properly be considered
in determining fitness and loyalty."
Id. at
342 U. S.
493.
A great American university has declared that members of its
faculty who invoked the Fifth Amendment before committees of
Congress were guilty of "misconduct,"
Page 350 U. S. 564
though not grave enough to justify dismissal. [
Footnote 2/6] Numerous other colleges and
universities have treated the plea of the Fifth Amendment as a
justification for dismissal of faculty members. [
Footnote 2/7] When educational institutions
themselves feel the impropriety of reserving full disclosure of
facts from duly authorized official investigations, can we properly
say a city cannot protect itself against such conduct by its
teachers?
The New York rule is not the patently arbitrary and
discriminatory statute of
Wieman v. Updegraff,
344 U. S. 183.
There, "[a] state servant may have joined a proscribed organization
unaware of its activities and purposes." 344 U.S. at
344 U. S. 190.
This Court unanimously condemned as arbitrary the requirement of an
oath that covered both innocent and knowing membership, without
distinction. A different situation exists here. Section 903 was
included
Page 350 U. S. 565
in the Seabury Report to help in the elimination of graft and
corruption. [
Footnote 2/8] Numerous
employees had refused to testify as to criminal acts on the ground
of self-incrimination. New York decided it did not want that kind
of public employees. We think New York had that right. We would
affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
Matter of Daniman v. Board of Education, Matter of Shlakman
v. Board of Higher Education, 306 N.Y. 532, 119 N.E.2d
737.
"In this court, we are all agreed that the Communist party is a
continuing conspiracy against our Government. . . . We are also all
in agreement that an inquiry into the past or present membership in
the Communist party is an inquiry regarding the official conduct of
an officer or employee of the City of New York. Loyalty to our
Government goes to the very heart of official conduct in service
rendered in all branches of Government. . . . Communism is opposed
to such loyalty. . . . Internal security affects local, as well as
National, Governments."
Id. at 540-541, 119 N.E.2d at 379. The majority decided
§ 903 was applicable to a "hearing before a Federal legislative
committee," and that this appellant was an employee of the city.
Id. at 541, 119 N.E.2d at 379.
[
Footnote 2/2]
Appellant's petition to the Supreme Court of the State of New
York stated in pertinent part as follows:
"9. Petitioners answered some and refused to answer others of
the questions referred to in paragraph 8 on various and numerous
grounds, including the ground that the Subcommittee had not
jurisdiction to inquire into such matters, the ground that the
First Amendment to the Constitution of the United States forbade
such inquiry, the ground that the procedures of the Subcommittee
violated their rights under the Fifth Amendment to the Constitution
of the United States and that they could not be required under the
Fifth Amendment to answer such questions, and on other grounds. The
Subcommittee acquiesced in the refusal of petitioners to answer
such questions."
[
Footnote 2/3]
Cf. Ullmann v. United States, 350 U.
S. 422 at
350 U. S.
438-439:
"For the history of the privilege establishes not only that it
is not to be interpreted literally, but also that its sole concern
is, as its name indicates, with the danger to a witness forced to
give testimony leading to the infliction of 'penalties affixed to
the criminal acts. . . .'"
[
Footnote 2/4]
Hebert v. Louisiana, 272 U. S. 312,
272 U. S. 316;
cf. Twining v. New Jersey, 211 U. S.
78,
211 U. S.
100.
[
Footnote 2/5]
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 323,
302 U. S.
325-326.
Cf. Francis v. Resweber, 329 U.
S. 459,
329 U. S. 463;
Adamson v. California, 332 U. S. 46,
332 U. S.
53.
[
Footnote 2/6]
42 American Association of University Professors Bulletin 96.
Compare The Rights and Responsibilities of Universities
and their Faculties, Association of American Universities, March
24, 1953, III:
"As in all acts of association, the professor accepts
conventions which become morally binding. Above all, he owes his
colleagues in the university complete candor and perfect integrity,
precluding any kind of clandestine or conspiratorial activities. He
owes equal candor to the public. If he is called upon to answer for
his convictions it is his duty as a citizen to speak out. It is
even more definitely his duty as a professor. Refusal to do so, on
whatever legal grounds, cannot fail to reflect upon a profession
that claims for itself the fullest freedom to speak and the maximum
protection of that freedom available in our society. In this
respect, invocation of the Fifth Amendment places upon a professor
a heavy burden of proof of his fitness to hold a teaching position,
and lays upon his university an obligation to reexamine his
qualifications for membership in its society."
"
* * * *"
". . . When the powers of legislative inquiry are abused, the
remedy does not lie in noncooperation or defiance; it is to be
sought through the normal channels of informed public opinion."
[
Footnote 2/7]
42 American Assn. of University Professors Bulletin 61-94.
[
Footnote 2/8]
In the Matter of the Investigation of the Departments of the
Government of the City of New York, Final Report by Samuel Seabury,
December 27, 1932, pp. 9-10.
MR. JUSTICE HARLAN, dissenting.
I dissent because I think the Court has misconceived the nature
of § 903, as construed and applied by the New York Court of
Appeals, and has unduly circumscribed the power of the State to
ensure the qualifications of its teachers.
As I understand MR. JUSTICE CLARK's opinion, the Court regards §
903 as raising some sort of presumption of guilt from Dr.
Slochower's claim of privilege. That is not the way the Court of
Appeals construed the statute. On the contrary, that Court
said:
"we do not presume, of course, that these petitioners (one of
whom was Dr. Slochower), by their action, have shown cause to be
discharged under the Feinberg Law, L.1949, ch. 360, since no
inference of membership in the Communist party may be drawn from
the assertion of one's privilege against self incrimination.
[
Footnote 3/1]"
Since § 903 is inoperative if even incriminating answers are
given, it is apparent that it is the exercise of the privilege
itself which is the basis for the discharge, quite apart from any
inference of guilt. Thus, the Court of Appeals could say that
"[t]he assertion of the privilege against self incrimination is
equivalent to a resignation." [
Footnote
3/2] It is also clear that the Board of Education's discharge
of Dr. Slochower was on this same
Page 350 U. S. 566
premise. The question this case presents, therefore, is not
whether any inferences can constitutionally be drawn from a claim
of privilege, but whether a State violates due process when it
makes a claim of privilege grounds for discharge.
In effect, what New York has done is to say that it will not
employ teachers who refuse to cooperate with public authorities
when asked questions relating to official conduct. Does such a
statute bear a reasonable relation to New York's interest in
ensuring the qualifications of its teachers? The majority seems to
decide that it does not. This Court has already held, however, that
a State may properly make knowing membership in an organization
dedicated to the overthrow of the Government by force a ground for
disqualification from public school teaching.
Adler v. Board of
Education, 342 U. S. 485. A
requirement that public school teachers shall furnish information
as to their past or present membership in the Communist Party is a
relevant step in the implementation of such a state policy, and a
teacher may be discharged for refusing to comply with that
requirement.
Garner v. Los Angeles Board, 341 U.
S. 716. Moreover, I think that a State may justifiably
consider that teachers who refuse to answer questions concerning
their official conduct are no longer qualified for public school
teaching, on the ground that their refusal to answer jeopardizes
the confidence that the public should have in its school system. On
either view of the statute, I think Dr. Slochower's discharge did
not violate due process.
It makes no difference that the question which Dr. Slochower
refused to answer was put to him by a federal, rather than a state,
body. The authority of the subcommittee to ask the question is not
controverted. While, as an original matter, I would be doubtful
whether § 903 was intended to apply to federal investigations,
the
Page 350 U. S. 567
Court of Appeals has ruled otherwise, and its interpretation is
binding on us. Dr. Slochower cannot discriminate between forums in
deciding whether or not to answer a proper and relevant question,
if the State requires him to answer before every lawfully
constituted body. Here, the information sought to be elicited from
Dr. Slochower could have been considered by state authorities in
reviewing Dr. Slochower's qualifications, and the effect of his
claim of privilege on the public confidence in its school system
was at least as great as it would have been had his refusal to
answer been before a state legislative committee.
There is some evidence that Dr. Slochower had already answered,
before a state committee, the same question which he refused to
answer before the congressional subcommittee. [
Footnote 3/3] Even assuming that New York already
had the information, I cannot see how that would prevent New York
from constitutionally applying § 903 to this claim of privilege.
Apart from other considerations, who can tell whether Dr. Slochower
would have answered the question the same way as he had before?
On this record, I would affirm the decision of the Court of
Appeals. A different question would be presented under the
Privileges and Immunities Clause of the Fourteenth Amendment. But
that question was not raised below, and is therefore not open here.
Dewey v. Des Moines, 173 U. S. 193.
[
Footnote 3/1]
306 N.Y. 532, 538, 119 N.E.2d 373, 377.
[
Footnote 3/2]
Ibid.
[
Footnote 3/3]
At the Senate subcommittee hearing, in response to Senator
Ferguson's inquiry whether or not Dr. Slochower had "ever" answered
a question concerning Communist Party membership in 1940 or 1941,
Dr. Slochower replied: "Yes, I did answer it."