# Slochower v. Board of Higher Education of the City of New York/Dissent Reed

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Reed Harlan
United States Supreme Court
350 U.S. 551
Slochower v. Board of Higher Education of the City of New York
Argued: Oct. 19, 1955. --- Decided: April 9, 1956
Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.
In reliance upon the Due Process Clause of our Constitution, the Court strikes deep into the authority of New York to protect its local governmental institutions from influences of officials whose conduct does not meet the declared state standards for employment. This New York City Charter, § 903, adopted in 1936 to take effect in 1938, was designed to eliminate from public employment individuals who refused to answer legally authorized inquiries as to the 'official conduct of any officer or employee of the city * * * on the ground that his answer would tend to incriminate him'. Its provisions, as applicable to Professor Slochower and others, have been upheld by the Court of Appeals of New York under multipronged state grounds of attack in the instances where he and other city teachers of New York have sought to bar their removal from their positions.
The sole reliance of the Court for reversal of the New York Court of Appeals is that § 903, as here applied, violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. The Court of Appeals amended its remittitur to show that it held federal due process was not violated. 307 N.Y. 806, 121 N.E.2d 629. In view of the conclusions of the Court of Appeals we need deal only with that problem. The Court of Appeals has exclusive power to determine the reach of its own statute.
The Court finds it a denial of due process to discharge an employee merely because he relied upon the Fifth Amendment plea of self-incrimination to avoid answering questions which he would be otherwise required to answer. We assert the contrary-the city does have reasonable ground to require its employees either to give evidence regarding facts of official conduct within their knowledge or to give up the positions they hold. Petitioners never contended that error or inadvertence led them to refuse to answer. Their contention is set out in the margin below. Discharges under § 903 do not depend upon any conclusion as to the guilt of the employee of some crime that might be disclosed by his testimony or as to his guilt of perjury, if really there was no prosecution to fear. We disagree with the Court's assumption that § 903 as a practical matter takes the questions asked as confessed. Cities, like other employers, may reasonably conclude that a refusal to furnish appropriate information is enough to justify discharge. Legally authorized bodies have a right to demand that citizens furnish facts pertinent to official inquiries. The duty to respond may be refused for personal protection against prosecution only, but such avoidance of public duty to furnish information can properly be considered to stamp the employee as a person unfit to hold certain official positions. Such a conclusion is reinforced when the claimant for protection has the role of instructor to youth. The fact that the witness has a right to plead the privilege against self-incrimination protects him against prosecution but not against the loss of his job.
The Court may intend merely to hold that since the facts of Slochower's alleged Communist affiliations prior to 1941 were known to the Board before the federal claim, and since the inquiries of the Committee were asked for a purpose unrelated to his college functions, therefore it was a denial of due process to vacate his office. If so, its conclusion is likewise, we think, erroneous. We agree that this case is not like Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317, an attempt to elicit information about professional qualifications. But § 903 is directed at the propriety of employing a man who refuses to give needed information to appropriate public bodies.
Consideration of the meaning of 'due process' under the Fourteenth Amendment supports our position that § 903 of the City Charter does not violate that concept. For this Court to hold that state action in the field of its unchallenged powers violates the due process of the Federal Constitution requires far more than mere disagreement with the legal conclusions of state courts. To require, as the Court does, that New York stay its hand in discharging a teacher whom the city deems unworthy to occupy a chair in its Brooklyn College, demands that this Court say, if it follows our prior cases, that the action of the Board in declaring Professor Slochower's position vacant was inconsistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. A denial of due process is 'a practice repugnant to the conscience of mankind.' Surely no such situation exists here.
Those charged with educational duties in a State bear heavy responsibilities. Only a few years ago, in Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 385, 96 L.Ed. 517, we upheld against three dissents the Feinberg Law of New York making ineligible for employment as a teacher in any public school a member of any subversive organization, if he knew its purpose. The argument that the 'fact found bears no relation to the fact presumed', i.e., 'disqualification for employment', was rejected. There also the contention was denial of due process. We said:
'A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty.' Id., 342 U.S. at page 493, 72 S.Ct. at page 385.
A great American university has declared that members of its faculty who invoked the Fifth Amendment before committees of Congress were guilty of 'misconduct' though not grave enough to justify dismissal. Numerous other colleges and universities have treated the plea of the Fifth Amendment as a justification for dismissal of faculty members. When educational institutions themselves feel the impropriety of reserving full disclosure of facts from duly authorized official investigations, can we properly say a city cannot protect itself against such conduct by its teachers?
The New York rule is not the patently arbitrary and discriminatory statute of Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. There 'A state servant may have joined a proscribed organization unaware of its activities and purposes.' 344 U.S. at page 190, 73 S.Ct. at page 218. This Court unanimously condemned as arbitrary the requirement of an oath that covered both innocent and knowing membership without distinction. A different situation exists here. Section 903 was included in the Seabury Report to help in the elimination of graft and corruption. Numerous employees had refused to testify as to criminal acts on the ground of self-incrimination. New York decided it did not want that kind of public employees. We think New York had that right. We would affirm the judgment of the Court of Appeals.

## Notes

* ↑ Daniman v. Board of Education of City of New York (Shlakman v. Board of Higher Education of City of New York), 306 N.Y. 532, 119 N.E.2d 737.
* ↑ Appellant's petition to the Supreme Court of the State of New York stated in pertinent part as follows:
* ↑ Cf. Ullmann v. United States, 350 U.S. 422 at 438-439, 76 S.Ct. 497: 'For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to the criminal acts * * *."
* ↑ Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270; Cf. Twining v. State of New Jersey, 211 U.S. 78, 100, 29 S.Ct. 14, 20, 53 L.Ed. 97.
* ↑ Palko v. State of Connecticut, 302 U.S. 319, 323, 325, 326, 58 S.Ct. 149, 151, 152, 83 L.Ed. 288. Cf. State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 376, 91 L.Ed. 422; Adamson v. People of State of California, 332 U.S. 46, 53, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903.
* ↑ 42 American Association of University Professors Bulletin 96. Compare The Rights and Responsibilities of Universities and their Faculties, Association of American Universities, March 24, 1953, III:
* ↑ 42 American Ass'n of University Professors Bulletin 61-94.
* ↑ In the Matter of the Investigation of the Departments of the Government of the City of New York, Final Report by Samuel Seabury, December 27, 1932, pp. 9-10.
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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