# Barsky v. Board of Regents of University of the State of New York/Dissent Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Frankfurter Douglas
United States Supreme Court
347 U.S. 442
Barsky v. Board of Regents of University of the State of New York
Argued: Jan. 4, 1954. --- Decided: April 26, 1954
Mr. Justice FRANKFURTER (dissenting).
While in substantial agreement with what is said in the Court's opinion, I am constrained to dissent because of what is left unsaid.
Appellant's suspension from the practice of medicine grew out of his conviction for refusing to turn over to the House Un-American Activities Committee documents of the Joint Anti-Fascist Refugee Committee, an organization of which appellant was Chairman. The Medical Subcommittee on Grievances of the New York Board of Regents, which held the original hearing in the disciplinary proceeding now before us, allowed counsel for the Regents to introduce evidence that this Joint Anti-Fascist Refugee Committee was in 1947 listed by the Attorney General of the United States as a subversive organization, and the Subcommittee accordingly made a specific finding to this effect in its report. This evidence was obviously irrelevant to the issue before the Committee-whether appellant had been convicted of a crime-and was also obviously extremely prejudicial to appellant. The Regents Committee on Discipline, reviewing the Grievance Committee, commented as follows on this matter:
'There is, it should be noted, evidence in the record, and reliance on that evidence in the findings of the Medical Committee on Grievances, that the Refugee Committee had been listed as Communist in the list furnished by the Attorney General of the United States. . . . In view of (the decision in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624), no evidentiary weight can be given in the present proceeding to the listing by the Attorney General.'
The Committee on Discipline concluded that appellant should not be suspended for six months, as the Grievance Committee had recommended, but should only be reprimanded. In face of this recommendation, the Board of Regents, without stating any reasons, accepted the decision of the Grievance Committee and ordered appellant suspended for a period of six months from his right to practice medicine.
When this question came before the New York Court of Appeals, that Court disposed of the issue as follows:
'As to the assertions, by appellants * * * that the Regents, in deciding on punishment, ignored weighty considerations and acted on matters not proper for consideration, it is enough to say that we are wholly without jurisdiction to review such questions. * * *' 305 N.Y. 89, 99, 111 N.E.2d 222, 226.
Thus he highest court of the State of New York tells us, in effect, 'Yes, it may be that the Regents arbitrarily deprived a doctor of his license to practice medicine, but the courts of New York can do nothing about it.' Such a rule of law, by denying all relief from arbitrary action, implicitly sanctions it; and deprivation of interests that are part of a man's liberty and property, when based on such arbitrary grounds, contravenes the Due Process Clause of the Fourteenth Amendment.
Of course a State must have the widest leeway in dealing with an interest so basic to its well-being as the health of its people. This includes the setting of standards, no matter how high, for medical practitioners, and the laying down of procedures for enforcement, no matter how strict. The granting of licenses to practice medicine and the curtailment or revocation of such licenses may naturally be entrusted to the sound discretion of an administrative agency. And while ordinary considerations of fairness and good sense may make it desirable for a State to require that the revocation or temporary suspension of a medical license be justified by stated reasons, the Due Process Clause of the Fourteenth Amendment does not lay upon the States the duty of explaining presumably conscientious action by appropriate State authorities. Douglas v. Noble, 261 U.S. 165, 169-170, 43 S.Ct. 303, 305, 67 L.Ed. 590. Reliance on the good faith of a state agency entrusted with the enforcement of appropriate standards for the practice of medicine is not in itself an investiture of arbitrary power offensive to due process. Likewise there is nothing in the United States Constitution which requires a State to provide for judicial review of the action of such agencies. Finally, when a State does establish some sort of judicial review, it can certainly provide that there be no review of an agency's discretion, so long as that discretion was exercised within the gamut of choices, however extensive, relevant to the purpose of the power given the administrative agency. So far as concerns the power to grant or revoke a medical license, that means that the exercise of the authority must have some rational relation to the qualifications required of a practitioner in that profession.
It is one thing thus to recognize the freedom which the Constitution wisely leaves to the States in regulating the professions. It is quite another thing, however, to sanction a State's deprivation or partial destruction of a man's professional life on grounds having no possible relation to fitness, intellectual or moral, to pursue his profession. Implicit in the grant of discretion to a State's medical board is the qualification that it must not exercise its supervisory powers on arbitrary, whimsical or irrational considerations. A license cannot be revoked because a man is red-headed or because he was divorced, except for a calling, if such there be, for which red-headedness or an unbroken marriage may have some rational bearing. If a State licensing agency lays bare its arbitrary action, or if the State law explicitly allows it to act arbitrarily, that is precisely the kind of State action which the Due Process Clause forbids. See Perkins v. Elg, 307 U.S. 325, 349-350, 59 S.Ct. 884, 896, 83 L.Ed. 1320; also Rex v. Northumberland Compensation Appeal Tribunal, (1951) 1 K.B. 711. The limitation against arbitrary action restricts the power of a State 'no matter by what organ it acts.' State of Missouri v. Dockery, 191 U.S. 165, 171, 24 S.Ct. 53, 54, 48 L.Ed. 133.
If the Regents had explicitly stated that they suspended appellant's license or lengthened the time of the suspension because he was a member of an organization on the so-called Attorney General's list, and the New York Court of Appeals had declared that New York law allows such action, it is not too much to believe that this Court would have felt compelled to hold that the Due Process Clause disallows it. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624; Id., D.C., 104 F.Supp. 567. Yet that is precisely what we may have here. It bears repeating that the Court of Appeals, the ultimate voice of New York law, found itself impotent to give relief on appellant's claim that the Regents 'in deciding on punishment, ignored weighty considerations and acted on matters not proper for consideration'. 305 N.Y. 89, 99, 111 N.E.2d 222, 226. At the very least, for all that appears, the Court of Appeals assumed that the Regents relied 'on matters not proper for consideration'. Thus the appellant may have been deprived of the liberty to practice his profession and of his property interests in his profession in contravention of due process. This is not a merely abstract possibility. The 'punishment'-the Court of Appeals so characterized it-recommended by the Grievance Committee rested certainly in part on arbitrary considerations, and the Board of Regents appears to have adopted this tainted 'determination.' Since the decision below may rest on a constitutionally inadmissible ground, the judgment should not stand. Stromberg v. People of State of California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Williams v. State of North Carolina, 317 U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279.
I would return this case to the New York authorities for reconsideration in light of the views here expressed.

## 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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