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

* 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 BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.
Dr. Barsky has been a practicing physician and surgeon since his graduation from the medical college of Columbia University in 1919, except for time spent doing postgraduate work in Europe. Beginning with his internship he has been almost continuously on the staff of Beth Israel Hospital in New York, the city of his birth. During the Spanish Civil War Dr. Barsky and others became actively concerned with the medical needs of Loyalist soldiers. The doctor went over to Spain to head an American hospital for the Loyalist wounded. Following his return to practice in New York, Dr. Barsky became chairman of the Joint Anti-Fascist Refugee Committee, an organization founded in 1942 to help with problems of Spanish refugees from the Franco government. In 1945 the House Committee on Un-American Activities began an investigation of the Refugee Committee to see if it was spreading political propaganda. Dr. Barsky and other members of the organization's executive board were summoned before the congressional Committee and asked to produce the records of contributions and disbursements of the Refugee Committee. Dr. Barsky and the others refused, explaining that many contributors had relatives in Spain whose lives might be endangered if the contributors' names were given out publicly. Instead, the organization was willing to give the required information to the President's War Relief Control Board. In making his refusal, Dr. Barsky had the advice of attorneys that his action was justified because the congressional Committee's subpoena transcended its constitutional powers. Concededly this advice was reasonable and in accord with the legal opinion of many lawyers and jurists throughout the country. Moreover, the Refugee Committee was advised that the only way to raise its constitutional claim and test the subpoena's validity was for its executives to risk jail by refusing to produce the requested papers. Dr. Barsky was sentenced to six months in jail as punishment for his disobedience of the order to produce, and the Court of Appeals affirmed his sentence, overruling his constitutional arguments. This Court denied certiorari without approving or disapproving the constitutional contentions. 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767.
When Dr. Barsky was released from jail and ready to resume his practice, an agent of the Board of Regents of the University of the State of New York served him with a complaint demanding that his license to practice medicine be revoked. This action was not based on any alleged failing of Dr. Barsky in his abilities or conduct as a physician or surgeon. The sole allegation was that he had been convicted of a crime-refusal to produce papers before Congress. New York law authorizes revocation or suspension of a physician's license if he is convicted of a crime. Hearings were held before a Grievance Committee of physicians appointed by the Regents, and there was much testimony to the effect that Dr. Barsky was both a skillful surgeon and a good citizen. No witness testified to any conduct of Dr. Barsky which in any way reflected on his personal or professional character. Nothing was proven against him except that he had refused to produce papers. In reviewing the findings of fact, pursuant to § 211 of the State's Education Law, the Regents' Discipline Committee reported that Dr. Barsky's refusal to produce the Refugee Committee's papers was shown to be due to a desire to preserve the constitutional rights of his organization, that his offense involved no moral turpitude whatever, and that he had already been punished. The right to test the constitutional power of a Committee is itself a constitutionally protected right in this country. But despite all these things the Regents suspended Dr. Barsky's medical license for six months, giving no reason for their action.
I have no doubt that New York has broad power to regulate the practice of medicine. But the right to practice is, as MR. JUSTICE DOUGLAS shows, a very precious part of the liberty of an individual physician or surgeon. It may mean more than any property. Such a right is protected from arbitrary infringement by our Constitution, which forbids any state to deprive a person of liberty or property without due process of law. Accordingly, we brought this case here to determine if New York's action against Dr. Barsky violates the requirements of the Federal constitution.
This record reveals, in my opinion, that New York has contravened the Constitution in at least one, and possibly two respects. First, it has used in place of probative evidence against Dr. Barsky an attainder published by the Attorney General of the United States in violation of the Constitution. Second, it has permitted Dr. Barsky to be tried by an agency vested with intermingled legislative-executive-judicial powers so broad and so devoid of legislative standards or guides that it is in effect not a tribunal operating within the ordinary safeguards of law but an agency with arbitrary power to decide, conceivably on the basis of suspicion, whim or caprice, whether or not physicians shall lose their licenses.
First. At the hearing before a subcommittee of the Medical Grievance Committee, appointed by the Regents, the lawyer for the Regents introduced evidence that the Refugee Committee headed by Dr. Barsky had been listed by the Attorney General of the United States as subversive. Pages and pages of the record are devoted to this listing, to arguments about its meaning and to other innuendoes of suspected communistic associations of Dr. Barsky without a single word of legal or credible proof. Excerpts from the record are printed in the Appendix to this opinion. The Grievance Committee made a formal finding of fact that the Refugee Committee had been listed as subversive. This Court, however, has held that the Attorney General's list was unlawful, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624. My view was and is that the list was the equivalent of a bill of attainder which the Constitution expressly forbids. The Regents' own reviewing Committee on Discipline recognized the illegality of the list and advised the Regents that no weight should be given to it. This reviewing committee also recommended that the Regents not accept the Grievance Committee's recommendation of a six months' suspension but instead give no suspension at all. The Regents, however, accepted and sustained the determination of the Grievance Committee. Dr. Barsky sought review in the Court of Appeals, but New York's highest court said it was without power to review the use of the Attorney General's list. Our responsibility is, however, broader. We must protect those who come before us from unconstitutional deprivation of their rights, whether the state court is empowered to do so or not. The record shows that the Grievance Committee made a finding of fact that 'Ever since 1947, the (Refugee) Committee has been listed as subversive by the Attorney General of the United States.' It seems perfectly natural for the Grievance Committee to rely on this list, for the Regents are charged with the duty of making up their own list of 'subversive' organizations for the purpose of dismissing teachers, and New York law authorizes the Regents to make use of the Attorney General's list. Dr. Barsky had a constitutional right to be free of any imputations on account of this illegal list. That reason alone should in my judgment require reversal of this case.
Second. Even if the evidence considered by the Regents and the Grievance Committee had been proper, I would still have grave doubts that Dr. Barsky was tried by procedures meeting constitutional requirements. The Regents who tried and suspended him exercise executive, legislative and judicial powers. The Regents have broad supervisory and disciplinary controls over schools, school boards and teachers. They also have powers over libraries and library books, and they censor movies. Doctors, dentists, veterinarians, accountants, surveyors, and other occupational groups are also subject to discipline by the Regents and must obey their rules. For example the Department of Education, headed by the Regents, has its own investigators, detectives and lawyers to get evidence and develop cases against doctors. Persons appointed by the Department prefer charges and testify against an accused before a committee of doctors appointed by the Regents. This committee after hearing evidence presented by departmental prosecutors makes findings and recommendations which are reviewed by another Regents' committee with power to make its own findings and recommendations. Then the Regents themselves, apparently bound in no way by the recommendations of either of their committees, make the final decision as to doctors' professional fate.
A doctor is subject to discipline by the Regents whenever he is convicted of a 'crime' within or without the State. Whether his 'crime' is the most debasing or the most trivial, the Regents have complete discretion to impose any measure of discipline from mere reprimand to full revocation of the doctor's license. No legislative standards fetter the Regents in this respect. And no court in New York can review the exercise of their 'discretion,' if it is shown that the Regents had authority to impose any discipline at all. Should they see fit to let a doctor repeatedly guilty of selling narcotics to his patients continue to practice, they could do so and at the same time bar for life a doctor guilty of a single minor infraction having no bearing whatever on his moral or professional character. They need give no reasons. Indeed the Regents might discipline a doctor for wholly indefensible reasons, such as his race, religion or suspected political beliefs, without any effective checks on their decisions.
In this case one can only guess why the Regents overruled their Discipline Committee and suspended Dr. Barsky. Of course it may be possible that the Regents thought that every doctor who refuses to testify before a congressional committee should be suspended from practice. But so far as we know the suspension may rest on the Board's unproven suspicions that Dr. Barsky had associated with Communists. This latter ground, if the basis of the Regents' action, would indicate that in New York a doctor's right to practice rests on no more than the will of the Regents. This Court, however, said many years ago that 'the nature and the theory of our institutions of government * * * do not mean to leave room for the play and action of purely personal and arbitrary power. * * * For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails * * *.' Yick Wo v. Hopkins, 118 U.S. 356, 369 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220.
At the hearing before the Subcommittee of the Medical Grievance Committee there was a great deal of testimony as to the nature and purposes of the Joint Anti-Fascist Refugee Committee. Mr. Tartikoff, assistant attorney general of New York, representing the Department of Education, repeatedly attempted to show that the Committee had engaged in 'subversive' or 'Un-American' activities. However, he presented no probative evidence tending to prove this allegation. Finally, Mr. Tartikoff sought to bring out that the Committee had been listed by the Attorney General of the United States as 'subversive.' Excerpts from the record of his questioning of Dr. Barsky on this point are quoted below.
'Mr. Tartikoff: resuming-
'Q. Doctor, is it not a fact that on or about November 24, 1947, the Attorney General of the United States, in pursuance of a directive contained in an executive order of the President of the United States listed and published a classification of organizations deemed to be subversive and Un-American, and that included amongst those organizations at that time by the Attorney General deemed to be subversive and Un-American was the Joint Anti-Fascist Refugee Committee?'
At this point Mr. Fishbein, Dr. Barsky's attorney, objected to the question. After a brief colloquy between counsel the record continues:
'Mr. Tartikoff: I think this committee is entitled to know whether this organization is listed by the Attorney General of the United States as being subversive and Un-American, particularly in light of Dr. Barsky's testimony that the activity of the organization since its inception in 1942 down to and including all through 1950 has been substantially the same during that period of time.'
'Mr. Tartikoff: You have introduced document after document to show this is one of the finest organizations in the world. I think I am entitled to counter that with evidence that the Attorney General of the United States reviewed the activities of this organization in whatever fashion he is supposed to review it and has come to an opposite conclusion.'
Shortly after, Dr. Shearer, the subcommittee chairman, overruled Mr. Fishbein's objection, and the hearing proceeded as follows:
'Mr. Tartikoff: resuming-
'Q. Was it so listed, Dr. Barsky? A. Mr. Tartikoff, the attorney-
'Q. Question: Was it so listed? That can take a 'yes' or 'no' answer. A. I just would like to bring up-
'Mr. Tartikoff:
'I ask the committee to direct him to answer that question 'yes' or 'no.'
'Chairman Shearer: 'Yes' or 'no,' Doctor Barsky. A. If I may for a moment,-off the record-
'Q. Doctor, will you please answer the question? A. The answer to the question is 'yes.'
'Q. And was it not again so listed by the Attorney General of the United States in a release made on May 27, 1948? A. The answer is I really don't know. You have the statement.
'Q. If I tell you that the statement so indicates, would you dispute it? A. I certainly would not, Mr. Tartikoff.
'Q. And isn't it a fact that it was again so listed on April 21, 1949, July 20, 1949, September 26, 1949, August 24, 1950, and September 5, 1950? A. I think you brought out the same list, Mr. Tartikoff.
'Q. Well, there may have been additional ones added, for your information. A. I really don't remember.
'Q. And doctor, didn't you as chairman of the Joint Anti-Fascist Refugee bring a proceeding against the Attorney General in the United States courts? A. Yes, sir.
'Q. To restrain him from listing your organization as subversive? A. Yes, sir.
'Q. And isn't it a fact that the Circuit Court ruled against you on that on August 11, 1949? A. Yes, sir.'
Later, after Dr. Barsky had asked the subcommittee not to 'lay too much stress on the fact that this list was made,' Mr. Tartikoff asked him these questions:
'Q. Wasn't there also an investigation in California by a Committee on Un-American Activities? A. The House Committee?
'Q. The Legislative Committee in California. A Legislative Committee of the State of California, and didn't they likewise list your organization as Communistic? A. What do you mean?
'Q. The California Committee on Un-American Activities, that's the Tenney Committee, did they list your organization as Communistic? A. I really don't know. If you have the record-'

## Notes

* ↑ And certainly since our recent holding in United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, it cannot be said that it is 'fanciful or factitious' to claim that the First Amendment bars congressional committees from seeking the names of contributors to an organization alleged to be engaged in 'political propaganda.'
* ↑ The University of the State of New York is the historic name of the corporate body which the Regents make up. It has no faculty or students of its own. See McKinney's N.Y. Laws, Education Law, § 201 et seq.
* ↑ This Court has authoritatively construed the federal offense of refusing to comply with a congressional subpoena as involving no moral turpitude. Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273.
* ↑ See Ex parte Young, 209 U.S. 123, 148, 28 S.Ct. 441, 449, 52 L.Ed. 714, and Oklahoma Operating Co. v. Love, 252 U.S. 331, 335-338, 40 S.Ct. 338, 340, 64 L.Ed. 596.
* ↑ Education Law, § 3022. See Adler v. Board of Education of the City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517.
* ↑ The New York Constitution, Art. 5, § 4, makes the Regents head of the Department of Education with power to appoint and remove at pleasure a Commissioner of Education who is the Department's chief administrative officer. These nonsalaried Regents are almost entirely independent of the Governor, being elected on joint ballot of the two houses of the Legislature for thirteen-year terms. Education Law, § 202. Executive power over the State's educational system is vested in the Regents by § 101 of the Education Law. Section 207 provides that 'the regents shall exercise legislative functions concerning the educational system of the state, determine its educational policies, and, except, as to the judicial functions of the commissioner of education, establish rules for carrying into effect the laws and policies of the state. * * *.'
* ↑ See Education Law, §§ 120 et seq., 214, 215, 216, 219, 224, 245 et seq., 704, 801 et seq. On motion picture censorship by the Regents see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.
* ↑ Education Law, §§ 211, 6501-7506. The professions of pharmacy, optometry, podiatry, nursing, shorthand reporting, architecture and engineering are also under the Regents' jurisdiction.
* ↑ For examples of entrapment of doctors by the Regents' investigators and the narrowness of judicial review afforded accused doctors see Weinstein v. Board of Regents, 267 App.Div. 4, 44 N.Y.S.2d 917, reversed, 292 N.Y. 682, 56 N.E.2d 104; Application of Epstein, 267 App.Div. 27, 44 N.Y.S.2d 921, reversed, 295 N.Y. 154, 65 N.E.2d 756.
* ↑ Barsky v. Board of Regents, 305 N.Y. 89, 99, 111 N.E.2d 222.
* ↑ The Regents, with their many law-enforcement duties, are plainly not a judicial body in the ordinary sense, yet court review is virtually precluded. Whether due process of law can be satisfied in this type of case by procedures from which effective review by the regular judicial branch of the government is barred is certainly not wholly clear. Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908, Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938 and St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033, with Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834.
* ↑ But see note 7 of the Courts' opinion.
* ↑ See Davis v. Schnell, D.C., 81 F.Supp. 872, 877, where in an opinion by Mullins, D.J., a three-judge district court, following Yick Wo v. Hopkins, struck down a state constitutional provision limiting voters to those who could "understand and explain" the Constitution. County Boards of Registrars were by statute given discretion to determine whether persons seeking to vote had satisfied the constitutional provision. Judge Mullins said:
'The words 'understand and explain' do not provide a reasonable standard. A simple test may be given one applicant; a long, tedious, complex one to another; one applicant may be examined on one article of the Constitution; another may be called upon to 'understand and explain' every word and article and provision of the entire instrument.
'To state it plainly, the sole test is: Has the applicant by oral examination or otherwise understood and explained the Constitution to the satisfaction of the particular board? To state it more plainly, the board has a right to reject one applicant and accept another, depending solely upon whether it likes or dislikes the understanding and explanation offered. To state it even more plainly, the board, by the use of the words 'understand and explain' is given the arbitrary power to accept or reject any prospective elector that may apply * * *. Such arbitrary power amounts to a denial of equal protection of the law within the meaning of the Fourteenth Amendment. * * *' 81 F.Supp., at 878. This Court affirmed without writing an opinion of its own. 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093.
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