Appellants, faculty members of the State University of New York
and a non-faculty employee, brought this action for declaratory and
injunctive relief, claiming that New York's teacher loyalty laws
and regulations are unconstitutional. Their continued employment
had been terminated or was threatened when each appellant faculty
member refused to comply with a requirement of the University
trustees that he certify that he was not a Communist and that, if
he had ever been one, he had so advised the university president,
and the non-faculty employee refused to state under oath whether he
had advocated or been a member of a group which advocated forceful
overthrow of the government. Under § 3021 of New York's Education
Law, "treasonable or seditious" utterances or acts are grounds for
dismissal from the public school system, as well as under § 105,
subd. 3, of the Civil Service Law. Other provisions of § 105 of the
Civil Service Law disqualify from the civil service or employment
in the educational system any person advocating or involved with
the distribution of written material which advocates the forceful
overthrow of the government. Section 3021 does not define
"treasonable or seditious." Section 105, subd. 3, provides that
"treasonable word or act" shall mean "treason" as defined in the
Penal Law, and "seditious word or act" shall mean "criminal
anarchy" as therein defined. Section 3022 (the Feinberg Law) of the
Education Law requires the State Board of Regents to issue
regulations for the disqualification or removal on loyalty grounds
of faculty or other personnel in the state educational system, to
make a list of "subversive" organizations, and to provide that
membership therein constitutes
prima facie evidence of
disqualification for employment. The Board listed the National and
State Communist Parties as "subversive organizations" under the
law, but, shortly before the trial of this case, the university
trustees' certificate requirement was rescinded and it was
announced that no person would be ineligible for employment
"solely" because he refused to sign the
Page 385 U. S. 590
certificate, and that §§ 3021 and 3022 of the Education Law and
§ 105 of the Civil Service Law constituted part of the employment
contract. A three-judge District Court sustained the
constitutionality of these provisions against appellants'
challenges of vagueness and overbreadth and dismissed the
complaint.
Held:
1.
Adler v. Board of Education, 342 U.
S. 485, in which this Court upheld some aspects of the
New York teacher loyalty plan before its extension to state
institutions of higher learning, is not controlling, the vagueness
issue presented here involving § 3021 and § 105 not having been
decided in
Adler, and the validity of the subversive
organization membership provision of § 3022 having been upheld for
reasons subsequently rejected by this Court. Pp.
385 U. S.
593-595.
2. The rescission of the certificate requirement does not moot
this case, as the substance of the statutory and regulatory complex
challenged by appellants remains. P.
385 U. S.
596.
3. Section 3021 of the Education Law and § 105, subds. 1(a),
1(b), and 3, of the Civil Service Law, as implemented by the
machinery created pursuant to § 3022 of the Education Law, are
unconstitutionally vague, since no teacher can know from § 3021 of
the Education Law and § 105, subd. 3, of the Civil Service Law what
constitutes the boundary between "seditious" and nonseditious
utterances and acts, and the other provisions may well prohibit the
employment of one who advocates doctrine abstractly, without any
attempt to incite others to action, and may be construed to cover
mere expression of belief. Pp.
385 U. S.
597-604.
(a) These provisions, which have not been interpreted by the New
York courts, can have a stifling effect on the "free play of the
spirit which all teachers ought especially to cultivate and
practice" (
Wieman v. Updegraff, 344 U.
S. 183,
344 U. S. 195
(concurring opinion)). Pp.
385 U. S. 601-602.
(b) Academic freedom is a special concern of the First
Amendment, which does not tolerate laws that cast a pall of
orthodoxy over the classroom. P.
385 U. S.
603.
(c) The prolixity and profusion of statutes, regulations, and
administrative machinery, and manifold cross-references to
interrelated enactments and rules aggravate the problem of
vagueness of wording. P.
385 U.S.
604.
4. The provisions of the Civil Service Law (§ 105, subd. 1(c))
and the Education Law (§ 3022, subd. 2) which make Communist Party
membership, as such,
prima facie evidence of
disqualification
Page 385 U. S. 591
for employment in the public school system are "overbroad," and
therefore unconstitutional. Pp.
385 U. S.
605-610.
(a) Constitutional doctrine after this Court's upholding of §
3022, subd. 2, in
Adler has rejected its major premise
that public employment may be conditioned upon the surrender of
constitutional rights which could not be abridged by direct
government action. P.
385 U. S.
605.
(b) Mere knowing membership, without a specific intent to
further the unlawful aims of an organization, is not a
constitutionally adequate basis for imposing sanctions. Pp.
385 U. S.
606-610.
255 F. Supp. 981, reversed and remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellants were members of the faculty of the privately owned
and operated University of Buffalo, and became state employees when
the University was merged in 1962 into the State University of New
York, an institution of higher education owned and operated by the
State of New York. As faculty members of the State University,
their continued employment was conditioned upon their compliance
with a New York plan, formulated
Page 385 U. S. 592
partly in statutes and partly in administrative regulations,
[
Footnote 1] which the State
utilizes to prevent the appointment or retention of "subversive"
persons in state employment.
Appellants Hochfield and Maud were Assistant Professors of
English, appellant Keyishian an instructor in English, and
appellant Garver, a lecturer in philosophy. Each of them refused to
sign, as regulations then in effect required, a certificate that he
was not a Communist, and that, if he had ever been a Communist, he
had communicated that fact to the President of the State University
of New York. Each was notified that his failure to sign the
certificate would require his dismissal. Keyishian's one-year-term
contract was not renewed, because of his failure to sign the
certificate. Hochfield and Garver, whose contracts still had time
to run, continue to teach, but subject to proceedings for their
dismissal if the constitutionality of the New York plan is
sustained. Maud has voluntarily resigned, and therefore no longer
has standing in this suit.
Appellant Starbuck was a non-faculty library employee and
part-time lecturer in English. Personnel in that classification
were not required to sign a certificate, but were required to
answer in writing under oath the question,
"Have you ever advised or taught or were you ever a member of
any society or group of persons which taught or advocated the
doctrine that the Government of the United States or of any
political subdivisions thereof should be overthrown or overturned
by force, violence or any unlawful means?"
Starbuck refused to answer the question, and, as a result, was
dismissed.
Appellants brought this action for declaratory and injunctive
relief, alleging that the state program violated the Federal
Constitution in various respects. A three-judge
Page 385 U. S. 593
federal court held that the program was constitutional. 255 F.
Supp. 981. [
Footnote 2] We
noted probable jurisdiction of appellants' appeal, 384 U.S. 998. We
reverse.
I
We considered some aspects of the constitutionality of the New
York plan 15 years ago in
Adler v. Board of Education,
342 U. S. 485.
That litigation arose after New York passed the Feinberg Law, which
added § 3022 to the Education Law. [
Footnote 3] The Feinberg Law was enacted to implement and
enforce two earlier statutes. The first was a 1917 law, now § 3021
of the Education Law, under which "the utterance of any treasonable
or seditious word or words or the doing of any treasonable or
seditious act" is a ground for dismissal from the public school
system. The second was a 1939 law which was § 12-a of the Civil
Service Law when
Adler was decided and, as amended, is now
§ 105 of that law. This law disqualifies from the civil service and
from employment in the educational system any person who advocates
the overthrow of government by force, violence, or any unlawful
means, or publishes material advocating such overthrow, or
organizes or joins any society or group of persons advocating such
doctrine.
The Feinberg Law charged the State Board of Regents with the
duty of promulgating rules and regulations providing procedures for
the disqualification or removal of persons in the public school
system who violate the 1917 law or who are ineligible for
appointment to or
Page 385 U. S. 594
retention in the public school system under the 1939 law. The
Board of Regents was further directed to make a list, after notice
and hearing, of "subversive" organizations, defined as
organizations which advocate the doctrine of overthrow of
government by force, violence, or any unlawful means. Finally, the
Board was directed to provide in its rules and regulations that
membership in any listed organization should constitute
prima
facie evidence of disqualification for appointment to or
retention in any office or position in the public schools of the
State.
The Board of Regents thereupon promulgated rules and regulations
containing procedures to be followed by appointing authorities to
discover persons ineligible for appointment or retention under the
1939 law, or because of violation of the 1917 law. The Board also
announced its intention to list "subversive" organizations after
requisite notice and hearing, and provided that membership in a
listed organization after the date of its listing should be
regarded as constituting
prima facie evidence of
disqualification, and that membership prior to listing should be
presumptive evidence that membership has continued, in the absence
of a showing that such membership was terminated in good faith.
Under the regulations, an appointing official is forbidden to make
an appointment until after he has first inquired of an applicant's
former employers and other persons to ascertain whether the
applicant is disqualified or ineligible for appointment. In
addition, an annual inquiry must be made to determine whether an
appointed employee has ceased to be qualified for retention, and a
report of findings must be filed.
Adler was a declaratory judgment suit in which the
Court held, in effect, that there was no constitutional infirmity
in former § 12-a or in the Feinberg Law on their faces, and that
they were capable of constitutional application. But the contention
urged in this case that
Page 385 U. S. 595
both § 3021 and § 105 are unconstitutionally vague was not heard
or decided. Section 3021 of the Education Law was challenged in
Adler as unconstitutionally vague, but because the
challenge had not been made in the pleadings or in the proceedings
in the lower courts, this Court refused to consider it. 342 U.S. at
342 U. S. 496.
Nor was any challenge on grounds of vagueness made in
Adler as to subdivisions 1(a) and (b) of § 105 of the
Civil Service Law. [
Footnote 4]
Subdivision 3 of § 105 was not added until 1958. Appellants in this
case timely asserted below the unconstitutionality of all these
sections on grounds of vagueness, and that question is now properly
before us for decision. Moreover, to the extent that
Adler
sustained the provision of the Feinberg Law constituting membership
in an organization advocating forceful overthrow of government a
ground for disqualification, pertinent constitutional doctrines
have since rejected the premises upon which that conclusion rested.
Adler is therefore not dispositive of the constitutional
issues we must decide in this case.
II
A 1953 amendment extended the application of the Feinberg Law to
personnel of any college or other institution of higher education
owned and operated by the State or its subdivisions. In the same
year, the Board of Regents, after notice and hearing, listed the
Communist Party of the United States and of the State of New York
as "subversive organizations." In 1956, each applicant for an
appointment or the renewal of an appointment was required to sign
the so-called "Feinberg Certificate" declaring that he had read the
Regents Rules and understood that the Rules and the statutes
Page 385 U. S. 596
constituted terms of employment, and declaring further that he
was not a member of the Communist Party, and that, if he had ever
been a member, he had communicated that fact to the President of
the State University. This was the certificate that appellants
Hochfield, Maud, Keyishian, and Garver refused to sign.
In June, 1965, shortly before the trial of this case, the
Feinberg Certificate was rescinded and it was announced that no
person then employed would be deemed ineligible for continued
employment "solely" because he refused to sign the certificate. In
lieu of the certificate, it was provided that each applicant be
informed before assuming his duties that the statutes, §§ 3021 and
3022 of the Education Law and § 105 of the Civil Service Law,
constituted part of his contract. He was particularly to be
informed of the disqualification which flowed from membership in a
listed "subversive" organization. The 1965 announcement further
provides:
"Should any question arise in the course of such inquiry, such
candidate may request . . . a personal interview. Refusal of a
candidate to answer any question relevant to such inquiry by such
officer shall be sufficient ground to refuse to make or recommend
appointment."
A brochure is also given new applicants. It outlines and
explains briefly the legal effect of the statutes and invites any
applicant who may have any question about possible disqualification
to request an interview. The covering announcement concludes that
"a prospective appointee who does not believe himself disqualified
need take no affirmative action. No disclaimer oath is
required."
The change in procedure in no wise moots appellants'
constitutional questions raised in the context of their refusal to
sign the now abandoned Feinberg Certificate. The substance of the
statutory and regulatory complex remains, and, from the outset,
appellants' basic claim has been that they are aggrieved by its
application.
Page 385 U. S. 597
III
Section 3021 requires removal for "treasonable or seditious"
utterances or acts. The 1958 amendment to § 105 of the Civil
Service Law, now subdivision 3 of that section, added such
utterances or acts as a ground for removal under that law also.
[
Footnote 5] The same wording
is used in both statutes -- that "the utterance of any treasonable
or seditious word or words or the doing of any treasonable or
seditious act or acts" shall be ground for removal. But there is a
vital difference between the two laws. Section 3021 does not define
the terms "treasonable or
Page 385 U. S. 598
seditious" as used in that section; in contrast, subdivision 3
of § 105 of the Civil Service Law provides that the terms
"treasonable word or act" shall mean "treason" as defined in the
Penal Law and the terms "seditious word or act" shall mean
"criminal anarchy" as defined in the Penal Law.
Our experience under the Sedition Act of 179, 1 Stat. 596,
taught us that dangers fatal to First Amendment freedoms inhere in
the word "seditious."
See New York Times Co. v. Sullivan,
376 U. S. 254,
376 U. S.
273-276. And the word "treasonable," if left undefined,
is no less dangerously uncertain. Thus, it becomes important
whether, despite the omission of a similar reference to the Penal
Law in 3021, the words as used in that section are to be read as
meaning only what they mean in subdivision 3 of 105. Or are they to
be read more broadly, and to constitute utterances or acts
"seditious" and "treasonable" which would not be so regarded for
the purposes of § 105?
Even assuming that "treasonable" and "seditious" in 3021 and
105, subd. 3, have the same meaning, the uncertainty is hardly
removed. The definition of "treasonable" in the Penal Law presents
no particular problem. The difficulty centers upon the meaning of
"seditious." Subdivision 3 equates the term "seditious" with
"criminal anarchy" as defined in the Penal Law. Is the reference
only to Penal Law § 160, defining criminal anarchy as
"the doctrine that organized government should be overthrown by
force or violence, or by assassination of the executive head or of
any of the executive officials of government, or by any unlawful
means?"
But that section ends with the sentence "The advocacy of such
doctrine either by word of mouth or writing is a felony." Does that
sentence draw into § 105, Penal Law § 161, proscribing "advocacy of
criminal anarchy"? If so, the
Page 385 U. S. 599
possible scope of "seditious" utterances or acts has virtually
no limit. For, under Penal Law § 161, one commits the felony of
advocating criminal anarchy if he
". . . publicly displays any book . . . containing or
advocating, advising or teaching the doctrine that organized
government should be overthrown by force, violence or ay unlawful
means. [
Footnote 6]"
Does the teacher who carries a copy of the Communist Manifesto
on a public street thereby advocate criminal anarchy? It is no
answer to say that the statute would not be applied in such a case.
We cannot gainsay the potential effect of this obscure wording on
"those with a conscientious and scrupulous regard for such
undertakings."
Baggett v. Bullitt, 377 U.
S. 360,
377 U. S. 374.
Even were it certain that the definition referred to in 105 was
solely Penal Law § 160, the scope of § 105 still remains
indefinite. The teacher cannot know the extent, if any, to which a
"seditious" utterance must transcend mere statement about abstract
doctrine, the extent to which it must be intended to and tend to
indoctrinate or incite to action in furtherance of the defined
doctrine. The crucial consideration is that no teacher can know
just where the line is drawn between "seditious" and nonseditious
utterances and acts.
Other provisions of § 105 also have the same defect of
vagueness. Subdivision 1(a) of § 105 bars employment of any person
who "by word of mouth or writing willfully and deliberately
advocates, advises or teaches the doctrine" of forceful overthrow
of government. This provision is plainly susceptible of sweeping
and improper application. It may well prohibit the employment of
one who merely advocates the doctrine in the abstract, without any
attempt to indoctrinate others or incite
Page 385 U. S. 600
others to action in furtherance of unlawful aims. [
Footnote 7]
See Herndon v. Lowry,
301 U. S. 242;
Yates v. United States, 354 U. S. 298;
Noto v. United States, 367 U. S. 290;
Scales v. United States, 367 U. S. 203. And
in prohibiting "advising" the "doctrine" of unlawful overthrow,
does the statute prohibit mere "advising" of the existence of the
doctrine, or advising another to support the doctrine? Since
"advocacy" of the doctrine of forceful overthrow is separately
prohibited, need the person "teaching" or "advising" this doctrine
himself "advocate" it? Does the teacher who informs his class about
the precepts of Marxism or the Declaration of Independence violate
this prohibition?
Similar uncertainty arises as to the application of subdivision
1(b) of § 105. That subsection requires the disqualification of an
employee involved with the distribution of written material
"containing or advocating, advising or teaching the doctrine" of
forceful overthrow, and who himself "advocates, advises, teaches,
or embraces the duty, necessity or propriety of adopting the
doctrine contained therein." Here again, mere advocacy of abstract
doctrine is apparently included. [
Footnote 8] And does
Page 385 U. S. 601
the prohibition of distribution of matter "containing" the
doctrine bar histories of the evolution of Marxist doctrine or
tracing the background of the French, American, or Russian
revolutions? The additional requirement, that the person
participating in distribution of the material be one who
"advocates, advises, teaches, or embraces the duty, necessity or
propriety of adopting the doctrine" of forceful overthrow, does not
alleviate the uncertainty in the scope of the section, but
exacerbates it. Like the language of § 105, subd. 1(a), this
language may reasonably be construed to cover mere expression of
belief. For example, does the university librarian who recommends
the reading of such materials thereby "advocate . . . the . . .
propriety of adopting the doctrine contained therein"?
We do not have the benefit of a judicial gloss by the New York
courts enlightening us as to the scope of this complicated plan.
[
Footnote 9] In light of the
intricate administrative machinery for its enforcement, this is not
surprising. The very intricacy of the plan and the uncertainty as
to the scope of its proscriptions make it a highly efficient
in
terrorem mechanism. It would be a bold teacher who would not
stay as far as possible from utterances or acts which might
jeopardize his living by enmeshing him in this intricate machinery.
The uncertainty as to the utterances and acts proscribed increases
that caution in "those who believe the written law means what it
says."
Baggett v. Bullitt, supra, at
377 U. S. 374.
The result must be to stifle "that free play of the spirit which
all teachers ought especially to cultivate and practice. . . ."
[
Footnote 10] That
probability is enhanced by the provisions requiring an
Page 385 U. S. 602
annual review of every teacher to determine whether any
utterance or act of his, inside the classroom or out, came within
the sanctions of the laws. For a memorandum warns employees that,
under the statutes, "subversive" activities may take the form of
"[t]he writing of articles, the distribution of pamphlets, the
endorsement of speeches made or articles written or acts performed
by others," and reminds them
"that it is a primary duty of the school authorities in each
school district to take positive action to eliminate from the
school system any teacher in whose case there is evidence that he
is guilty of subversive activity. School authorities are under
obligation to proceed immediately and conclusively in every such
case."
There can be no doubt of the legitimacy of New York's interest
in protecting its education system from subversion. But
"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."
Shelton v. Tucker, 364 U. S. 479,
364 U. S. 488.
The principle is not inapplicable because the legislation is aimed
at keeping subversives out of the teaching ranks. In
De Jonge
v. Oregon, 299 U. S. 353,
299 U. S. 365,
the Court said:
"The greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and
violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free assembly
in order to maintain the opportunity for free political discussion,
to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very
foundation of constitutional government. "
Page 385 U. S. 603
Our Nation is deeply committed to safeguarding academic freedom,
which is of transcendent value to all of us, and not merely to the
teachers concerned. That freedom is therefore a special concern of
the First Amendment, which does not tolerate laws that cast a pall
of orthodoxy over the classroom. "The vigilant protection of
constitutional freedoms is nowhere more vital than in the community
of American schools."
Shelton v. Tucker, supra at
364 U. S. 487.
The classroom is peculiarly the "marketplace of ideas." The
Nation's future depends upon leaders trained through wide exposure
to that robust exchange of ideas which discovers truth "out of a
multitude of tongues, [rather] than through any kind of
authoritative selection."
United States v. Associated
Press, 52 F. Supp.
362, 372. In
Sweezy v. New Hampshire, 354 U.
S. 234,
354 U. S. 250,
we said:
"The essentiality of freedom in the community of American
universities is almost self-evident. No one should underestimate
the vital role in a democracy that is played by those who guide and
train our youth. To impose any strait jacket upon the intellectual
leaders in our colleges and universities would imperil the future
of our Nation. No field of education is so thoroughly comprehended
by man that new discoveries cannot yet be made. Particularly is
that true in the social sciences, where few, if any, principles are
accepted as absolutes. Scholarship cannot flourish in an atmosphere
of suspicion and distrust. Teachers and students must always remain
free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and
die."
We emphasize once again that "[p]recision of regulation must be
the touchstone in an area so closely touching our most precious
freedoms,"
N.A.A.C.P. v.
Button,
Page 385 U. S. 604
371 U. S. 415,
371 U. S.
438;
"[f]or standards of permissible statutory vagueness are strict
in the area of free expression. . . . Because First Amendment
freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity."
Id. at
371 U. S.
432-433. New York's complicated and intricate scheme
plainly violates that standard. When one must guess what conduct or
utterance may lose him his position, one necessarily will "steer
far wider of the unlawful zone. . . ."
Speiser v. Randall,
357 U. S. 513,
357 U. S. 526.
For "[t]he threat of sanctions may deter . . . almost as potently
as the actual application of sanctions."
N.A.A.C.P. v. Button,
supra, at
371 U. S. 433.
The danger of that chilling effect upon the exercise of vital First
Amendment rights must be guarded against by sensitive tools which
clearly inform teachers what is being proscribed.
See Stromberg
v. California, 283 U. S. 359,
283 U. S. 369;
Cramp v. Board of Public Instruction, 368 U.
S. 278;
Baggett v. Bullitt, supra.
The regulatory maze created by New York is wholly lacking in
"terms susceptible of objective measurement."
Cramp v. Board of
Public Instruction, supra, at
368 U. S. 286.
It has the quality of "extraordinary ambiguity" found to be fatal
to the oaths considered in
Cramp and
Baggett v.
Bullitt. "[M]en of common intelligence must necessarily guess
at its meaning and differ as to its application. . . ."
Baggett
v. Bullitt, supra, at
377 U. S. 367. Vagueness of wording is aggravated by
prolixity and profusion of statutes, regulations, and
administrative machinery, and by manifold cross-references to
interrelated enactments and rules.
We therefore hold that § 3021 of the Education Law and
subdivisions 1(a), 1(b) and 3 of § 105 of the Civil Service Law, as
implemented by the machinery created pursuant to § 3022 of the
Education Law, are unconstitutional.
Page 385 U. S. 605
IV
Appellants have also challenged the constitutionality of the
discrete provisions of subdivision 1(c) of § 105 and subdivision 2
of the Feinberg Law, which make Communist Party membership, as
such,
prima facie evidence of disqualification. The
provision was added to subdivision 1(c) of § 105 in 1958 after the
Board of Regents, following notice and hearing, listed the
Communist Party of the United States and the Communist Party of the
State of New York as "subversive" organizations. Subdivision 2 of
the Feinberg Law was, however, before the Court in
Adler,
and its constitutionality was sustained. But constitutional
doctrine which has emerged since that decision has rejected its
major premise. That premise was that public employment, including
academic employment, may be conditioned upon the surrender of
constitutional rights which could not be abridged by direct
government action. Teachers, the Court said in
Adler,
"may work for the school system upon the reasonable terms laid
down by the proper authorities of New York. If they do not choose
to work on such terms, they are at liberty to retain their beliefs
and associations and go elsewhere."
342 U.S. at
342 U. S. 492.
The Court also stated that a teacher denied employment because of
membership in a listed organization
"is not thereby denied the right of free speech and assembly.
His freedom of choice between membership in the organization and
employment in the school system might be limited, but not his
freedom of speech or assembly, except in the remote sense that
limitation is inherent in every choice."
Id. at
342 U. S.
493.
However, the Court of Appeals for the Second Circuit correctly
said in an earlier stage of this case,
". . . the theory that public employment which may be denied
altogether may be subjected to any conditions, regardless
Page 385 U. S. 606
of how unreasonable, has been uniformly rejected."
Keyishian v. Board of Regents, 345 F.2d 236, 239.
Indeed, that theory was expressly rejected in a series of decisions
following
Adler. See Wieman v. Updegraff,
344 U. S. 183;
Slochower v. Board of Education, 350 U.
S. 551;
Cramp v. Board of Public Instruction, supra;
Baggett v. Bullitt, supra; Shelton v. Tucker, supra; Speiser v.
Randall, supra; see also Schware v. Board of Bar Examiners,
353 U. S. 232;
Torcaso v. Watkins, 367 U. S. 488. In
Sherbert v. Verner, 374 U. S. 398,
374 U. S. 404,
we said:
"It is too late in the day to doubt that the liberties of
religion and expression may be infringed by the denial of or
placing of conditions upon a benefit or privilege."
We proceed then to the question of the validity of the
provisions of subdivision 1(c) of § 105 and subdivision 2 of §
3022, barring employment to members of listed organizations. Here
again, constitutional doctrine has developed since
Adler.
Mere knowing membership, without a specific intent to further the
unlawful aims of an organization, is not a constitutionally
adequate basis for exclusion from such positions as those held by
appellants. In
Elfbrandt v. Russell, 384 U. S.
11, we said,
"Those who join an organization but do not share its unlawful
purposes and who do not participate in its unlawful activities
surely pose no threat, either as citizens or as public
employees."
Id. at
384 U. S. 17. We
there struck down a statutorily required oath binding the state
employee not to become a member of the Communist Party with
knowledge of its unlawful purpose, on threat of discharge and
perjury prosecution if the oath were violated. We found that
"[a]ny lingering doubt that proscription of mere knowing
membership, without any showing of 'specific intent,' would run
afoul of the Constitution was set at rest by our decision in
Aptheker v. Secretary of State, 378 U. S.
500."
Elfbrandt v. Russell, supra, at
384 U. S. 16. In
Aptheker, we held that Party membership, without
knowledge
Page 385 U. S. 607
of the Party's unlawful purposes
and specific intent to
further its unlawful aims, could not constitutionally warrant
deprivation of the right to travel abroad. As we said in
Schneiderman v. United States, 320 U.
S. 118,
320 U. S.
136,
"[U]nder our traditions, beliefs are personal, and not a matter
of mere association, and . . . men, in adhering to a political
party or other organization . . . , do not subscribe unqualifiedly
to all of its platforms or asserted principles."
"A law which applies to membership without the 'specific intent'
to further the illegal aims of the organization infringes
unnecessarily on protected freedoms. It rests on the doctrine of
'guilt by association,' which has no place here."
Elfbrandt, supra, at
384 U. S. 19.
Thus, mere Party membership, even with knowledge of the Party's
unlawful goals, cannot suffice to justify criminal punishment,
see Scales v. United States, 367 U.
S. 203;
Noto v. United States, 367 U.
S. 290;
Yates v. United States, 354 U.
S. 298; [
Footnote
11] nor may it warrant a finding of moral unfitness justifying
disbarment.
Schware v. Board of Bar Examiners,
353 U. S. 232.
These limitations clearly apply to a provision, like § 105,
subd. 1(c), which blankets all state employees, regardless of the
"sensitivity" of their positions. But even the Feinberg Law
provision, applicable primarily to activities of teachers, who have
captive audiences of young minds, are subject to these limitations
in favor of freedom of expression and association; the stifling
effect on the academic mind from curtailing freedom of association
in such manner is manifest, and has been documented in recent
studies. [
Footnote 12]
Elfbrandt and
Aptheker state the
Page 385 U. S. 608
governing standard: legislation which sanctions membership
unaccompanied by specific intent to further the unlawful goals of
the organization or which is not active membership violates
constitutional limitations.
Measured against this standard, both Civil Service Law § 106,
subd. 1(c), and Education Law § 3022, subd. 2, sweep overbroadly
into association which may not be proscribed. The presumption of
disqualification arising from proof of mere membership may be
rebutted, but only by (a) a denial of membership, (b) a denial that
the organization advocates the overthrow of government by force, or
(c) a denial that the teacher has knowledge of such advocacy.
Lederman v. Board of Education, 276 App.Div. 527 96
N.Y.S.2d 466,
aff'd, 301 N.Y. 476, 95 N.E.2d 806.
[
Footnote 13] Thus, proof of
nonactive membership or a showing of the absence of intent to
further unlawful aims will not rebut the presumption and defeat
dismissal. This is emphasized in official administrative
interpretations. For example, it is said in a letter addressed to
prospective appointees by the President of the State
University,
"You will note that . . . both the Law and regulations are very
specifically directed toward the elimination and nonappointment of
'Communists' from or to our teaching ranks. . . ."
The Feinberg Certificate was even more explicit:
"Anyone who is a
Page 385 U. S. 609
member of the Communist Party or of any organization
that advocates the violent overthrow of the Government of the
United States or of the State of New York or any political
subdivision thereof cannot be employed by the State
University."
(Emphasis supplied.) This official administrative interpretation
is supported by the legislative preamble to the Feinberg Law, § 1,
in which the legislature concludes as a result of its findings
that
"it is essential that the laws prohibiting persons who are
members of subversive groups, such as the communist party
and its affiliated organizations, from obtaining or retaining
employment in the public schools, be rigorously enforced."
(Emphasis supplied.)
Thus, 105, subd. 1(c), and § 3022, subd. 2, suffer from
impermissible "overbreadth."
Elfbrandt v. Russell, supra,
at
384 U. S. 19;
Aptheker v. Secretary of State, supra; N.A.A.C.P. v. Button,
supra; Saia v. New York, 334 U. S. 558;
Schneider v. State, 308 U. S. 147;
Lovell v. Griffin, 303 U. S. 444;
cf. Hague v. C.I.O., 307 U. S. 496,
307 U. S.
515-516;
see generally Dombrowski v. Pfister,
380 U. S. 479,
380 U. S. 486.
They seek to bar employment both for association which legitimately
may be proscribed and for association which may not be proscribed
consistently with First Amendment rights. Where statutes have an
overbroad sweep, just as where they are vague, "the hazard of loss
or substantial impairment of those precious rights may be
critical,"
Dombrowski v. Pfister, supra, at
380 U. S. 486,
since those covered by the statute are bound to limit their
behavior to that which is unquestionably safe. As we said in
Shelton v. Tucker, supra, at
364 U. S. 488,
"The breadth of legislative abridgment must be viewed in the light
of less drastic means for achieving the same basic purpose."
We therefore hold that Civil Service Law § 105, subd. 1(c), and
Education Law § 3022, subd. 2, are invalid insofar as they
proscribe mere knowing membership,
Page 385 U. S. 610
without any showing of specific intent to further the unlawful
aims of the Communist Party of the United States or of the State of
New York.
The judgment of the District Court is reversed, and the case is
remanded for further proceedings consistent with this opinion.
Reversed and remanded.
[
Footnote 1]
The text of the pertinent statutes and administrative
regulations in effect at the time of trial appears in the
385
U.S. 589app|>Appendix to the opinion.
[
Footnote 2]
The District Court initially refused to convene a three-judge
court, 233 F. Supp. 752, and was reversed by the Court of Appeals
for the Second Circuit. 345 F.2d 236.
[
Footnote 3]
For the history of New York loyalty security legislation,
including the Feinberg Law,
see Chamberlain, Loyalty and
Legislative Action, and that author's article in Gellhorn, The
States and Subversion 231.
[
Footnote 4]
The sole "vagueness" contention in
Adler concerned the
word "subversive," appearing in the preamble to and caption of §
3022. 342 U.S. at
342 U. S.
496.
[
Footnote 5]
There is no merit in the suggestion, advanced by the Attorney
General of New York for the first time in his brief in this Court,
that § 3021 of the Education Law and § 105, subd. 3, of the Civil
Service Law are not "pertinent to our inquiry." Section 3022 of the
Education Law incorporates by reference the provisions of both,
thereby rendering them applicable to faculty members of all
colleges and institutions of higher education. One of the reasons
why the Court of Appeals ordered the convening of a three-judge
court was that a substantial federal question was presented by the
fact that
"
Adler . . . refused to pass upon the constitutionality
of section 3021 . . . , [and that] several statutory amendments,
such as Section 105(3) of the Civil Service Law, are all subsequent
to
Adler."
345 F.2d 236, 238. The three-judge court also properly found
these provisions applicable to appellants in holding them
constitutional. It is significant that appellees consistently
defended the constitutionality of these sections in the courts
below. Moreover, the three-judge court rendered its decision upon
the basis of a "Stipulation of Fact," paragraph 20 of which
recites:
"Section 3022 incorporates in full by reference and implements
Section 105 of the Civil Service Law and Section 3021 of the New
York State Education Law as follows: Subdivision (1) of Section
3022, as amended . . . directs the Board of Regents to adopt and
enforce rules and regulations for the elimination of persons barred
from employment in the public school system or any college or
institution of higher education owned by the State of New York or
any political subdivision thereof, by reason of violation of any of
the provisions of Section 105 of the Civil Service Law or Section
3021 of the New York State Education Law."
[
Footnote 6]
Penal Law §§ 160-161 are to be replaced effective September 1,
1967, by a single provision entitled "criminal advocacy."
[
Footnote 7]
The New York State Legislative Committee on Public Employee
Security Procedures, in describing this provision, noted:
"In disqualifying for employment those who advocate or teach the
'doctrine' of the violent overthrow of government, [§ 105] is to be
distinguished from the language of the Smith Act (18 U.S.C. §§ 371,
2385), which has been construed by the Supreme Court to make it
criminal to incite to 'action' for the forcible overthrow of
government, but not to teach the 'abstract doctrine' of such
forcible overthrow.
Yates v. United States, 354 U. S.
298 (195)."
1958 N.Y.State Legis. Annual 70, n. 1.
[
Footnote 8]
Compare the Smith Act, 18 U.S.C. § 2385, which punishes
one who
"prints, publishes, edits, issues, circulates, sells,
distributes, or publicly displays any written or printed matter
advocating, advising, or teaching the duty, necessity,
desirability, or propriety of"
unlawful overthrow, provided he is shown to have an "intent to
cause the overthrow or destruction of any such government."
[
Footnote 9]
This is not a case where abstention pending state court
interpretation would be appropriate,
Baggett v. Bullitt,
supra, at
377 U. S.
375-379;
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
489-490.
[
Footnote 10]
Wieman v. Updegraff, 344 U. S. 183,
344 U. S. 195
(Frankfurter, J., concurring).
[
Footnote 11]
Whether or not loss of public employment constitutes
"punishment,"
cf. United States v. Lovett, 328 U.
S. 303, there can be no doubt that the repressive impact
of the threat of discharge will be no less direct or
substantial.
[
Footnote 12]
See Lazarsfeld & Thielens, The Academic Mind
92-112, 192-217; Biddle, The Fear of Freedom 155
et seq.;
Jahoda & Cook, Security Measures and Freedom of Thought: An
Exploratory Study of the Impact of Loyalty and Security Programs,
61 Yale L. J. 295 (1952).
See generally, MacIver, Academic
Freedom in Our Time: Hullfish, Educational Freedom in an Age of
Anxiety; Konvitz, Expanding Liberties 86-108; Morris, Academic
Freedom and Loyalty Oaths, 28 Law & Contemp.Prob. 487
(1963)
[
Footnote 13]
In light of our disposition, we need not consider appellants
contention that the burden placed on the employee of coming forward
with substantial rebutting evidence upon proof of membership in a
listed organization is constitutionally impermissible.
Compare
Speiser v. Randall, 357 U. S. 513.
|
385
U.S. 589app|
APPENDIX TO OPINION OF THE COURT
CIVIL SERVICE LAW
§ 105. Subversive activities; disqualification
1. Ineligibility of persons advocating overthrow of government
by force or unlawful means. No person shall be appointed to any
office or position in the service of the state or of any civil
division thereof, nor shall any person employed in any such office
or position be continued in such employment, nor shall any person
be employed in the public service as superintendent, principal or
teacher in a public school or academy or in a state college or any
other state educational institution who:
(a) by word of mouth or writing wilfully and deliberately
advocates, advises or teaches the doctrine that the government of
the United States or of any state or of any political subdivision
thereof should be overthrown or overturned by force, violence or
any unlawful means; or
(b) prints, publishes, edits, issues or sells any book, paper,
document or written or printed matter in any form containing or
advocating, advising or teaching the doctrine that the government
of the United States or of any state or of any political
subdivision thereof should be overthrown by force, violence or any
unlawful means, and who advocates, advises, teaches, or embraces
the duty, necessity or propriety of adopting the doctrine contained
therein; or
Page 385 U. S. 611
(c) organizes or helps to organize or becomes a member of any
society or group of persons which teaches or advocates that the
government of the United States or of any state or of any political
subdivision thereof shall be overthrown by force or violence, or by
any unlawful means.
For the purposes of this section, membership in the communist
party of the United States of America or the communist party of the
state of New York shall constitute
prima facie evidence of
disqualification for appointment to or retention in any office or
position in the service of the state or of any city or civil
division thereof.
2. A person dismissed or declared ineligible pursuant to this
section may within four months of such dismissal or declaration of
ineligibility be entitled to petition for an order to show cause
signed by a justice of the supreme court, why a hearing on such
charges should not be had. Until the final judgment on said hearing
is entered, the order to show cause shall stay the effect of any
order of dismissal or ineligibility based on the provisions of this
section; provided, however, that, during such stay a person so
dismissed shall be suspended without pay, and if the final
determination shall be in his favor he shall be restored to his
position with pay for the period of such suspension less the amount
of compensation which he may have earned in any other employment or
occupation and any unemployment insurance benefits he may have
received during such period. The hearing shall consist of the
taking of testimony in open court with opportunity for
cross-examination. The burden of sustaining the validity of the
order of dismissal or ineligibility by a fair preponderance of the
credible evidence shall be upon the person making such dismissal or
order of ineligibility.
3. Removal for treasonable or seditious acts or utterances. A
person in the civil service of the state or of
Page 385 U. S. 612
any civil division thereof shall be removable therefrom for the
utterance of any treasonable or seditious word or words or the
doing of any treasonable or seditious act or acts while holding
such position. For the purpose of this subdivision, a treasonable
word or act shall mean "treason," as defined in the penal law; a
seditious word or act shall mean "criminal anarchy" as defined in
the penal law.
EDUCATION LAW
§ 3021. Removal of superintendents, teachers and employees for
treasonable or seditious acts or utterances
A person employed as superintendent of schools, teacher or
employee in the public schools, in any city or school district of
the state, shall be removed from such position for the utterance of
any treasonable or seditious word or words or the doing of any
treasonable or seditious act or acts while holding such
position.
§ 3022. Elimination of subversive persons from the public school
system
1. The board of regents shall adopt, promulgate, and enforce
rules and regulations for the disqualification or removal of
superintendents of schools, teachers or employees in the public
schools in any city or school district of the state and the faculty
members and all other personnel and employees of any college or
other institution of higher education owned and operated by the
state or any subdivision thereof who violate the provisions of
section three thousand twenty-one of this article or who are
ineligible for appointment to or retention in any office or
position in such public schools or such institutions of higher
education on any of the grounds set forth in section twelve-a of
the civil service law and shall provide therein appropriate methods
and procedure for the enforcement of such sections of this article
and the civil service law.
Page 385 U. S. 613
2. The board of regents shall, after inquiry, and after such
notice and hearing as may be appropriate, make a listing of
organizations which it finds to be subversive in that they
advocate, advise, teach or embrace the doctrine that the government
of the United States or of any state or of any political
subdivision thereof shall be overthrown or overturned by force,
violence or any unlawful means, or that they advocate, advise,
teach or embrace the duty, necessity or propriety of adopting any
such doctrine, as set forth in section twelve-a of the civil
service law. Such listings may be amended and revised from time to
time. The board, in making such inquiry, may utilize any similar
listings or designations promulgated by any federal agency or
authority authorized by federal law, regulation or executive order,
and for the purposes of such inquiry, the board may request and
receive from such federal agencies or authorities any supporting
material or evidence that may be made available to it. The board of
regents shall provide in the rules and regulations required by
subdivision one hereof that membership in any such organization
included in such listing made by it shall constitute
prima
facie evidence of disqualification for appointment to or
retention in any office or position in the public schools of the
state.
3. The board of regents shall annually, on or before the
fifteenth day of February, by separate report, render to the
legislature, a full statement of measures taken by it for the
enforcement of such provisions of law and to require compliance
therewith. Such reports shall contain a description of surveys made
by the board of regents, from time to time, as may be appropriate,
to ascertain the extent to which such provisions of law have been
enforced in the city and school districts of the state.
Page 385 U. S. 614
RULES OF THE BOARD OF REGENTS
(Adopted July 15, 1949)
ARTICLE XVIII
SUBVERSIVE ACTIVITIES.
Section 244. Disqualification or removal of superintendents
teachers and other employes.
1 The school authorities of each school district shall take all
necessary action to put into effect the following procedures for
disqualification or removal of superintendents, teachers or other
employes who violate the provisions of section 3021 of the
Education Law or section 12-a
* of the Civil
Service Law.
a Prior to the appointment of any superintendent,
teacher or employe, the nominating official, in addition to making
due inquiry as to the candidate's academic record, professional
training experience and personal qualities, shall inquire of prior
employers, and such other persons as may be in a position to
furnish pertinent information, as to whether the candidate is known
to have violated the aforesaid statutory provisions, including the
provisions with respect to membership in organizations listed by
the Board of Regents as subversive in accordance with paragraph 2
hereof. No person who is found to have violated the said statutory
provisions shall be eligible for employment.
b The school authorities shall require one or more of
the officials in their employ, whom they shall designate for such
purpose, to submit to them in writing not later than October 31,
1949, and not later than September 30th of each school year
thereafter, a report on each teacher or other employe. Such report
shall either (1) state that there is no evidence indicating that
such teacher or other employee has violated the statutory
provisions herein referred
Page 385 U. S. 615
to, including the provisions with respect to membership in
organizations listed by the Regents as subversive in accordance
with paragraph 2 hereof; or (2) where there is evidence indicating
a violation of said statutory provisions, including membership in
such a subversive organization, recommend that action be taken to
dismiss such teacher or other employe, on the ground of a specified
violation or violations of the law.
c The school authorities shall themselves prepare such
reports on the superintendent of schools and such other officials
as may be directly responsible to them, including the officials
designated by them in accordance with subdivision
b of
this paragraph.
d The school authorities shall proceed as promptly as
possible, and, in any event, within 90 days after the submission of
the recommendations required in subdivision
b of this
paragraph, either to prefer formal charges against superintendents,
teachers or other employes for whom the evidence justifies such
action, or to reject the recommendations for such action.
e Following the determination required in subdivision
d of this paragraph, the school authorities shall
immediately institute proceedings for the dismissal of
superintendents, teachers or other employes in those cases in which
in their judgment the evidence indicates violation of the statutory
provisions herein referred to. In proceedings against persons
serving on probation or those having tenure, the appropriate
statutory procedure for dismissal shall be followed. In proceedings
against persons serving under contract and not under the provisions
of a tenure law, the school authorities shall conduct such hearings
on charges as they deem the exigencies warrant before taking final
action on dismissal. In all cases, all rights to a fair trial,
representation by counsel and appeal or court review as provided by
statute or the Constitution shall be scrupulously observed.
Page 385 U. S. 616
2 Pursuant to chapter 360 of the Laws of 1949, the Board of
Regents will issue a list, which may be amended and revised from
time to time, of organizations which the Board finds to be
subversive in that they advocate, advise, teach or embrace the
doctrine that the Government of the United States, or of any state
or of any political subdivision thereof, shall be overthrown or
overturned by force, violence or any unlawful means, or that they
advocate, advise, teach or embrace the duty, necessity or propriety
of adopting any such doctrine, as set forth in section 12-a
* of the Civil
Service Law. Evidence of membership in any organization so listed
on or after the tenth day subsequent to the date of official
promulgation of such list shall constitute
prima facie
evidence of disqualification for appointment to or retention of any
office or position in the school system. Evidence of membership in
such an organization prior to said day shall be presumptive
evidence that membership has continued, in the absence of a showing
that such membership has been terminated in good faith.
3 On or before the first day of December of each year, the
school authorities of each school district shall render to the
Commissioner of Educational a full report, officially adopted by
the school authorities and signed by their presiding officer, of
the measures taken by them for the enforcement of these regulations
during the calendar year ending on the 31st day of October
preceding. Such report shall include a statement as to (a) the
total number of superintendents, teachers and other employes in the
employ of the school district; (b) the number of superintendents,
teachers and other employes as to whom the school authorities
and/or the officials designated by them have reported that there is
no evidence indicating that such employes have violated the
statutory provisions
Page 385 U. S. 617
herein referred to, including the provisions with respect to
membership in organizations listed by the Regents as subversive,
and (c) the number of superintendents, teachers and other employes
in whose cases the school authorities and/or the officials
designated by them have recommended that action be taken to dismiss
the employes in question, on the grounds of specified violations of
the law or evidence of membership in a subversive organization.
Such report shall also include, for the group listed under (c)
above, a statement of (d) the number of cases in which charges have
been or are to be preferred and the status or final disposition of
each of these cases; (e) the number of cases in which the school
authorities have concluded that the evidence reported by the
designated officials does not warrant the preferring of charges,
and (f) the number of cases in which the school authorities have
not determined, as of October 31st of the school year in question,
on the action to be taken.
4 Immediately upon the finding by school authorities that any
person is disqualified for appointment or retention in employment
under these regulations, said school authorities shall report to
the Commissioner of Education the name of such person and the
evidence supporting his disqualification, including a transcript of
the official records of hearings on charges, if any, which have
been conducted.
PENAL LAW
§ 160. Criminal anarchy defined
Criminal anarchy is the doctrine that organized government
should be overthrown by force or violence, or by assassination of
the executive head or of any of the executive officials of
government, or by any unlawful means. The advocacy of such doctrine
either by word of mouth or writing is a felony.
Page 385 U. S. 618
§ 161. Advocacy of criminal anarchy
Any person who:
1. By word of mouth or writing advocates, advises or teaches the
duty, necessity or propriety of overthrowing or overturning
organized government by force or violence, or by assassination of
the executive head or of any of the executive officials of
government, or by any unlawful means; or,
2. Prints, publishes, edits, issues or knowingly circulates,
sells, distributes or publicly displays any book, paper, document,
or written or printed matter in any form, containing or advocating,
advising or teaching the doctrine that organized government should
be overthrown by force, violence or any unlawful means; or,
3. Openly, willfully and deliberately justifies by word of mouth
or writing the assassination or unlawful killing or assaulting of
any executive or other officer of the United States or of any state
or of any civilized nation having an organized government because
of his official character, or any other crime, with intent to
teach, spread or advocate the propriety of the doctrines of
criminal anarchy; or,
4. Organizes or helps to organize or becomes a member of or
voluntarily assembles with any society, group or assembly of
persons formed to teach or advocate such doctrine.
Is guilty of a felony and punishable by imprisonment for not
more than ten years, or by a fine of not more than five thousand
dollars, or both.
RESOLUTIONS OF THE BOARD OF TRUSTEES OF THE
STATE UNIVERSITY OF NEW YORK
Resolved that Resolution 65-100 adopted May 13, 1965,
be and the same hereby is, amended to read as follows:
"
Resolved that Resolution No. 56-98 adopted on October
11, 1956, incorporated into the Policies of
Page 385 U. S. 619
the Board of Trustees as Section 3 of Title B of Article XI
thereof, and the Procedure on New Academic Appointments therein
referred to, be, and the same hereby are, Rescinded, and"
Further Resolved that Title B of Article XI of the
Policies of the Board of Trustees be amended by adding a new
Section 3 thereto to read as follows:
§ 3. Procedure for appointments.
Before any initial appointment shall hereafter be made to any
position certified to be in the professional service of the
University pursuant to Section 35 of the Civil Service Law the
officer authorized to make such appointment or to make the initial
recommendation therefor shall send or give to the prospective
appointee a statement prepared by the President concisely
explaining the disqualification imposed by Section 105 of the Civil
Service Law and by Section 3022 of the Education Law and the Rules
of the Board of Regents thereunder, including the presumption of
such disqualification by reason of membership in organizations
listed by the Board of Regents. Such officer, in addition to due
inquiry as to the candidate's record, professional training,
experience and personal qualities, shall make or cause to be made
such further inquiry as may be needed to satisfy him as to whether
or not such candidate is disqualified under the provisions of such
statute and rules. Should any question arise in the course of such
inquiry such candidate may request or such officer may require a
personal interview. Refusal of a candidate to answer any question
relevant to such inquiry by such officer shall be sufficient ground
to refuse to make or recommend appointment. An appointment or
recommendation for appointment shall constitute a certification by
the appointing or
Page 385 U. S. 620
recommending officer that due inquiry has been made and that he
finds no reason to believe that the candidate is disqualified for
the appointment.
Further Resolved that this resolution shall become
effective July l, 1965, provided, however, that this resolution
shall become effective immediately with respect to appointments
made or recommended prior to July l, 1965, to take effect on or
after that date.
Resolved that any person presently employed or
heretofore employed by the University who has failed to sign the
certificate required by the Procedure on New Academic Appointments
adopted on October 11, 1956, shall not be deemed disqualified or
ineligible solely by reason of such failure, for appointment or
reappointment in the professional service of the University in the
manner provided in new Section 3 of Title B of Article XI of the
Policies of the Board of Trustees as adopted by resolution this
day; and
Further Resolved that any person presently employed by
the University shall not be deemed ineligible or disqualified for
continuance in his employment during the prescribed term thereof,
nor be subject to charges of misconduct, solely by reason of such
failure, provided he is found qualified for such continuance by the
Chief Administrative officer of the institution at which he is
employed in accordance with the procedures prescribed in said new
Section 3 of Title B of Article XI of the Policies of the Board of
Trustees.
* Now section 105.
MR. JUSTICE CLARK, with whom MR. JUSTICE HARLAN, MR. JUSTICE
STEWART and MR. JUSTICE WHITE join, dissenting.
The blunderbuss fashion in which the majority couches "its
artillery of words," together with the morass of cases it cites as
authority and the obscurity of their application
Page 385 U. S. 621
to the question at hand, makes it difficult to grasp the true
thrust of its decision. At the outset, it is therefore necessary to
focus on its basis.
This is a declaratory judgment action testing the
application of the Feinberg Law to appellants. The
certificate and statement once required by the Board of Trustees of
the State University and upon which appellants base their attack
were, before the case was tried, abandoned by the Board and are no
longer required to be made. Despite this fact, the majority
proceeds to its decision striking down New York's Feinberg Law and
other statutes as applied to appellants on the basis of the old
certificate and statement. It does not explain how the statute can
be applied to appellants under procedures which have been for
almost two years a dead letter. The issues posed are, therefore,
purely abstract, and entirely speculative in character. The Court,
under such circumstances, has in the past refused to pass upon
constitutional questions. In addition, the appellants have neither
exhausted their administrative remedies, nor pursued the remedy of
judicial review of agency action as provided earlier by subdivision
(d) of § 12-a of the Civil Service Law. Finally, one of the
sections stricken, § 105, subd. 3, has been amended by a revision
which under its terms will not become effective until September 1,
1967. (Laws 1965 c. 1030, § 240.15, Revised Penal Law of 1965.)
I
The old certificate upon which the majority operates required
all of the appellants, save Starbuck, to answer the query whether
they were Communists, and if they were, whether they had
communicated that fact to the President of the State University.
Starbuck was required to answer whether he had ever advised,
taught, or been a member of a group which taught or advocated the
doctrine that the Government of the United States, or any
Page 385 U. S. 622
of its political subdivisions, should be overthrown by force,
violence, or any unlawful means. All refused to comply. It is in
this nonexistent frame of reference that the majority proceeds to
act.
It is clear that the Feinberg Law, in which this Court found "no
constitutional infirmity" in 1952, has been given its death blow
today. Just as the majority here finds that there "can be no doubt
of the legitimacy of New York's interest in protecting its
education system from subversion," there can also be no doubt that
"the be-all and end-all" of New York's effort is here. And,
regardless of its correctness, neither New York nor the several
States that have followed the teaching of
Adler v. Board of
Education, 342 U. S. 485, for
some 15 years can ever put the pieces together again. No court has
ever reached out so far to destroy so much with so little.
The section (§ 3021 of the Education Law) which authorizes the
removal of superintendents, teachers, or employees in the public
schools in any city or school district of New York for the
utterance of any treasonable or seditious word or words is also
struck down, even though it does not apply to appellants, as we
shall discuss below.
Also declared unconstitutional are the subdivisions (1)(a), l(b)
and 1(c) of 105 of the Civil Service Law) which prevent the
appointment and authorize the discharge of any superintendent,
principal, or teacher in any part of New York's public education
establishment who willfully advocates, advises, or teaches the
doctrine that the Government of the United States, or of any State
or any political subdivision thereof should be overthrown by force,
violence, or any other unlawful means (1)(a)); or who prints,
publishes, edits, issues, or sells any book, paper, document, or
written or printed matter, in any form, containing such doctrine
and "who advocates, advises, teaches, or embraces the duty,
necessity or
Page 385 U. S. 623
propriety of adopting the doctrine contained therein" (1(b)); or
who organizes or helps to organize or becomes a member of any
society or group which teaches or advocates such doctrine (1(c)).
This latter provision was amended in 1958, while still part of §
12-a of the Civil Service Law, to make membership in the Communist
Party
prima facie proof of disqualification. The language
"advocate, advise, teach," etc., obviously springs from federal
statutes, particularly the Smith Act, § 2(a)(1), (2) and (3), 54
Stat. 671, which was approved by this Court in
Dennis v. United
States, 341 U. S. 494
(1951). State statutes of similar character and language have been
approved by this Court.
See Garner v. Board of Public Works of
Los Angeles, 341 U. S. 716
(1951);
Beilan v. Board of Education, 357 U.
S. 399 (1958).
Lastly stricken is the subdivision (3 of § 105) which authorizes
the discharge of any person in the civil service of the State or
any civil division thereof who utters any treasonable or seditious
word or commits any treasonable or seditious act, although this
subdivision is not and never has been a part of the Feinberg Law,
and New York specifically disclaims its applicability to the
appellants. In addition, how can the Court pass upon this law as
applied when the State has never attempted to and now renounces its
application to appellants?
II
This Court has again and again, since at least 1951, approved
procedures either identical or at the least similar to the ones the
Court condemns today. In
Garner v. Board of Public Works of Los
Angeles, supra, we held that a public employer was not
precluded, simply because it was 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." 341 U.S. at
341 U. S. 720.
The oath there used practically the same language
Page 385 U. S. 624
as the Starbuck statement here and the affidavit reflects the
same type of inquiry as was made in the old certificate condemned
here. Then, in 1952, in
Adler v. Board of Education,
supra, this Court passed upon the identical statute condemned
here. It, too, was a declaratory judgment action -- as in this
case. However, there the issues were not so abstractly framed. Our
late Brother Minton wrote for the Court:
"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. 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."
At
342 U. S. 493.
And again in 1958, the problem was before us in
Beilan v. Board
of Education, supra. There, our late Brother Burton wrote for
the Court:
"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."
357 U.S. at
357 U. S. 405.
And on the same day, in
Lerner v. Casey, 357 U.
S. 468, our Brother HARLAN again upheld the severance of
a public employee for his refusal to answer questions concerning
his loyalty. And also on the same day, my Brother BRENNAN himself
cited
Garner with approval in
Speiser v. Randall, 357 U. S. 513
(1958).
Since that time, the
Adler line of cases has been cited
again and again with approval:
Shelton v.
Tucker, 364
Page 385 U. S. 625
U.S. 479 (1960), in which both
Adler and
Beilan were quoted with approval, and
Garner and
Lerner were cited in a like manner; likewise in
Cramp
v. Board of Public Instruction, 368 U.
S. 278 (1961),
Adler was quoted twice with
approval; and, in a related field where the employee was discharged
for refusal to answer questions as to his loyalty after being
ordered to do so,
Nelson v. Los Angeles County,
362 U. S. 1 (1960),
the Court cited with approval all of the cases which today it says
have been rejected,
i.e., Garner, Adler, Beilan and
Lerner. Later,
Konigsberg v. State Bar,
366 U. S. 36
(1961), likewise cited with approval both
Beilan and
Garner. And in our decision in
In re Anastaplo,
366 U. S. 82
(1961),
Garner, Beilan and
Lerner were all
referred to. Finally, only three Terms ago, my Brother WHITE relied
upon
Cramp, which, in turn, cited
Adler with
approval twice.
See Baggett v. Bullitt, 377 U.
S. 360 (1964).
In view of this long list of decisions covering over 15 years of
this Court's history, in which no opinion of this Court even
questioned the validity of the
Adler line of cases, it is
strange to me that the Court now finds that the "constitutional
doctrine which has emerged since . . . has rejected
[
Adler's] major premise." With due respect, as I read
them, our cases have done no such thing.
III
The majority also finds that
Adler did not pass upon §
3021 of the Education Law, nor subdivision 3 of § 105 of the Civil
Service Law, nor upon the vagueness questions of subdivisions 1(a),
1(b) and 1(c) of § 105. I will now discuss them.
1. Section 3021 is not applicable to these appellants. As
Attorney General Lefkowitz of New York says on behalf of the State,
the Board of Regents and the Civil Service Commission, this
section, by its own terms, applies only to superintendents,
teachers, and employees in the
Page 385 U. S. 626
"public schools, in any city or school district of the state. .
. ." It does not apply to teachers in the State University at
all.*
2. Likewise subdivision 3 of § 105 is also inapplicable. It was
derived from § 23 a of the Civil Service Law. The latter provision
was on the books at the time of the Feinberg Law, as well as when
Adler was decided. The Feinberg Law referred only to §
12-a of the Civil Service Law, not § 23-a. Section 12-a was later
recodified as subdivisions 1(a), (b) and (c) of § 105 of the Civil
Service Law. Section 23-a (now § 105, subd. 3) deals only with the
civil divisions of the civil service of the State. As the Attorney
General tells us, the law before us has to do with the
qualifications of college level personnel not covered by civil
service. The Attorney General also advises that no superintendent,
teacher, or employee of the educational system has ever been
charged with violating § 105, subd. 3. The Court seems to me to be
building straw men.
3. The majority also says that no challenge or vagueness points
were passed upon in
Adler. A careful examination of the
briefs in that case casts considerable doubt on this conclusion. In
the appellants' brief, point 3, in
Adler, the question is
stated in this language:
"The statutes and the regulations issued thereunder violate the
due process clause of the Fourteenth Amendment because of their
vagueness."
Certainly the word "subversive" is attacked as vague, and the
Court finds that it "has a
Page 385 U. S. 627
very definite meaning, namely, an organization that teaches and
advocates the overthrow of government by force or violence." 342
U.S. at
342 U. S. 496.
Significantly this is the language of subdivisions 1(a) and (b)
which the majority now finds vague, as covering one "who merely
advocates the doctrine in the abstract . . . ," citing such
criminal cases as
Herndon v. Lowry, 301 U.
S. 242 (1937), which was on our books long before the
Adler line of cases. Also significant is the fact that the
Adler opinion's last sentence is
"We find no constitutional infirmity in 12-a [now subdivisions
1(a), 1(b) and 1(c) of 105] of the Civil Service Law of New York or
in the Feinberg Law which implemented it. . . ."
At 496.
IV
But even if
Adler did not decide these questions, I
would be obliged to answer them in the same way. The only portion
of the Feinberg Law which the majority says was not covered there
and is applicable to appellants is § 105, subd. 1(a), 1(b) and
1(c). These have to do with teachers who advocate, advise, or teach
the doctrine of overthrow of our Government by force and violence,
either orally or in writing. This was the identical conduct that
was condemned in
Dennis v. United States, supra. There,
the Court found the exact verbiage not to be unconstitutionally
vague, and that finding was, of course, not affected by the
decision of this Court in
Yates v. United States,
354 U. S. 298. The
majority makes much over the horribles that might arise from
subdivision 1(b) of § 105 which condemns the printing, publishing,
selling, etc., of matter containing such doctrine. But the majority
fails to state that this action is condemned only when and if the
teacher also personally advocates, advises, teaches, etc., the
necessity or propriety of adopting such doctrine. This places this
subdivision on the same
Page 385 U. S. 628
footing as 1(a). And the same is true of subdivision 1(c) where
a teacher organizes, helps to organize, or becomes a member of an
organization which teaches or advocates such doctrine, for
scienter would also be a necessary ingredient under our
opinion in
Garner, supra. Moreover, membership is only
prima facie evidence of disqualification and could be
rebutted, leaving the burden of proof on the State. Furthermore,
all of these procedures are protected by an adversary hearing with
full judicial review.
In the light of these considerations, the strained and
unbelievable suppositions that the majority poses could hardly
occur. As was said in
Dennis, supra, "we are not convinced
that, because there may be borderline cases," the State should be
prohibited the protections it seeks. At
341 U. S. 516.
Where there is doubt as to one's intent or the nature of his
activities, we cannot assume that the administrative boards will
not give him full protection. Furthermore, the courts always sit to
make certain that this is done.
The majority says that the Feinberg Law is bad because it has an
"overbroad sweep." I regret to say -- and I do so with deference --
that the majority has, by its broadside, swept away one of our most
precious rights, namely, the right of self-preservation. Our public
educational system is the genius of our democracy. The minds of our
youth are developed there and the character of that development
will determine the future of our land. Indeed, our very existence
depends upon it. The issue here is a very narrow one. It is not
freedom of speech, freedom of thought, freedom of press, freedom of
assembly, or of association, even in the Communist Party. It is
simply this: may the State provide that one who, after a hearing
with full judicial review, is found to have willfully and
deliberately advocated, advised, or taught that our Government
should be overthrown by force or violence
Page 385 U. S. 629
or other unlawful means; or to have willfully and deliberately
printed published, etc., any book or paper that so advocated and to
have personally advocated such doctrine himself; or to have
willfully and deliberately become a member of an organization that
advocates such doctrine, is
prima facie disqualified from
teaching in its university? My answer, in keeping with all of our
cases up until today, is "Yes"!
I dissent.
* The Court points to a stipulation of counsel that § 3022
incorporates § 3021 into the Feinberg Law. However, Attorney
General Lefkowitz did not sign the stipulation itself, but, in an
addendum thereto, agreed only that it constituted the record of
fact -- not of law. His brief contends that § 3021 is not
incorporated into the law. The legislature, of course, is the only
body that could incorporate § 3021 into the Feinberg Law. It has
not done so.