# Keyishian v. Board of Regents of the University of the State of New York/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
385 U.S. 589
Keyishian v. Board of Regents of the University of the State of New York
Argued: Nov. 17, 1966. --- Decided: Jan 23, 1967
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 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.)
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 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, 72 S.Ct. 380, 96 L.Ed. 517, 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), 1(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 wilfully 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 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, 71 S.Ct. 857, 95 L.Ed. 1137 (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, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); Beilan v. Board of Education, School District of Philadelphia, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958).
Lastly stricken is the subdivision (3 of § 105) which authorizes the discharge of any person in the civil servic 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?
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 720, 71 S.Ct., at 912. The oath there used practically the same language as the Starbuck statement here and the affidavit reflects the sam 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 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.' At 493 of 342 U.S., at 385 of 72 S.Ct.
And again in 1958 the problem was before us in Beilan v. Board of Education, School District of Philadelphia, 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 405, 78 S.Ct. at 1321.
And on the same day in Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423 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, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).
Since that time the Adler line of cases has been cited again and again with approval: Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (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, 82 S.Ct. 275, 7 L.Ed.2d 285 (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, 80 S.Ct. 527, 4 L.Ed.2d 494 (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, 81 S.Ct. 978, 6 L.Ed.2d 135 (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, 84 S.Ct. 1316, 12 L.Ed.2d 377 (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.
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 '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 very definite meaning, namely, an organization that teaches and advocates the overthrow of government by force or violence.' 342 U.S., at 496, 72 S.Ct., at 387. 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, 57 S.Ct. 732, 81 L.Ed. 1066 (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 of 342 U.S., at 387 of 72 S.Ct.
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, 77 S.Ct. 1064, 1 L.Ed.2d 1356. 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 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 516 of 341 U.S., at 871 of 71 S.Ct. 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 offended 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 wilfully and deliberately advocated, advised, or taught that our Government should be overthrown by force or violence or other unlawful means; or to have wilfully and deliberately printed, published, etc., any book or paper that so advocated and to have personally advocated such doctrine himself; or to have wilfully and deliberately become a member o 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.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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