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### HE L~TTCBRNES GENERAL QblF?!kXAS

Honorable J.W. Edgar Commissioner of Education Texas Education Agency 201 East 11th Street Austin,,Texas

Dear Mr. Edgar: Opinion No. M-417
Re: Whether the State Board of Education may require a loyalty oath, as prescribed in Sections 1, 2and 3of Article 6252-7, V.C.S., of authors bidding for state adoption and purchase of textbooks and teaching aids?

You have asked whether the oath, required byArticle 6252-7, Sections 1, 2, and 3,Vernon's Civil Statutes, as a condition precedent to consideration of any ,textbook,is constitutionally permissible. Paragraph 23 of the proposed Proclamation of the State Board of Education, advertising forbids on textbooks, is inaccord with Article 6252-7, Section 3, and reads as follows:

"Authors ofall textbooks and teaching aids offered for adoption under this proclamation shall sign thenon-subversive oath incompliance with the provisions ofArticle 6252-7. Revised Civil Statutes of Texas. The bid of apublisher will not be considered unless there has been compliance with the terms of the,foregoing statute."
It isour opinion thatArticle 6252-7, Sections 1, 2, and 3, violates several provisions ofboth the State and Federal Constitutions: therefore, the Board of Education may not require the prescribed oath as a condition precedent to consideration of a textbook.



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Honorable J.W. Edgar, page 2 (M-417)

Article 6252-7, Section 3, requires that the State Board of Education "neither adopt nor purchase any textbook for use in the schools of this State unless and until the author of such textbook files with the Board an oath or affirmation reciting thematters set forth in Subdivisions 1, 2 and 3of Section 1" of the statute. Section 1ofArticle 6252-7'provides that "no funds of the State ofTexas shall be paid to any person ...unless and until such person has filed
...an oath or affirmation stating:

'8 1
. That the affiant isnot, andhas never been, amember of the Communist Party. (Theterm 'Communist Party' as used herein means any organization which (a) is substantially directed, dominated or controlled by the Union of Soviet Socialistic Republics, or its satellites, orwhich (b) seeks to overthrow the Government of the United States, or of any State, by force, violence or any other unlawful means); and
"2
. That the affiant isnot, and, during the preceding five year period, has not been amember of any organization, association, movement, group or combination which theAttorney General of the United States, acting pursuant to Executive Order No. 9835, March 21, 1947, 12.Federal Register 1935,has designated as totalitarian, fascist, communist or subversive, or ashaving adopted a policy of advocating or approving the commission of acts of force orviolence todeny others their rights under the Constitution of theUnited States, or as seeking to alter the form ofGovernment of theUnited States by unconstitutional means: or, inthe event that the affiant has during such five year period been amember ofany such organization, association, movement, group or combination, he shall state itsname, shall state in detail the circumstances which ledhim to join it,and shall state that, at the timewhen he joined and throughout the period during which

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hewas amember, he did not know that itspurposes were the purposes which theAttorney General of the United States has designated: and
"3
. That the affiant isnot, and, during the preceding five year period, has not been, a member of any 'Communist Political Organization' or 'Communist Front Organization' registered under the Federal Internal Security Act of 1950 (50U.S.C.A., sec. 781, et seq.) or required to so register under saidAct by final order of the Federal Subversive Activities Control Board: or, in the event that the affiant has during such five year period been amember of any such organization, he shall state itsname, shall state in detail the circumstances which ledhim to join it, and shall state that, at the time when he joined itand throughout the period during which he was amember, he did not know that itspurpose was to further the goals of the Communist Party or that itwas controlled by the Communist Party." The Federal court inGilmore v. James, 274 F.Supp. 75 (N.D.Tex. 1967) affirmed, 389 U.S. 572,held Article 6252-7, Section 1,unconstitutional. The Gilmore case involved extraction of the oath as a condition precedent to employment. The flaw in the oath provided byArticle 6252-7 is stated in the following excerpt from the opinion in the Gilmore case, 274 F. SUPP. at 92:

"Oaths in support of the government are not abhorrent to the Constitution. Indeed, the Constitution provides one. The vice of the oath condemned here is that it equates membership or association with non-allegiance. A statute which automatically disqualifies applicants on thebasis ofmembership alone ensnares the innocent with theguilty. While such membership may furnish abasis for further inquiry into an applicant's present or past activities, it does not in itself constitute a threat to the state. An individual isentitled tobe judged by his own conduct, not that ofhis associates. To the extent thatArticle 6252-7 disqualifies passive or dissenting members of such organizations, it is toobroadly

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-Honorable J.W. Edgar, page 4 (M-417)

drawn. Even as to ignorant members, the statutory exculpation, if any, isvague in its implementation. See Speiser v. Randall, 1958, 357 U.S. 513, 78 S.Ct. 1332 2L.Ed.2d 1460,with contemporary elucidation by Keyishian v. Board of Regents ..." (385U.S. 589,607, 1967)
The individual who writes abook possesses the same constitutional rights possessed by the individual seeking public employment. The fact that Article 6252-7, Section 3, imposes the oath as a condition precedent to consideration or purchase of an individual's written work does not furnish anybasis for distinguishing the holding in Gilmore v. James, supra. Article 6252-7, Section 3,presents an additional constitutional question not present inGilmore v. James, supra.

InGilmore the question isnot whether any oathmay be extracted from apublic employee, but iswhether theparticular oath may be extracted as a condition precedent to employment. There is some relationship between themotive for the oath and the desired and permissible objective. The motive is tobar certain classes of people from public employment and the desirable and permissible objective is toprevent subversion ingovernment. The fact that the oath used is overly broad and therefore violative of constitutional rights does not obscure the fact that a rational connection between means and end does exist. Section 3ofArticle 6252-7 presents the additional question whether any oath may be required as a condition precedent to consideration of abook. It isdoubtful that there isany reasonable connection between means and end in this context. A book may be judged on its own merit regardless of the associations of its author. Two cases by the United States Supreme Court indicate that using an oath todetermine whether aperson can qualify for a right of citizenship isanunfair method of classification, because itplaces on the claimant of the right the burden toprove that he is aproper person to exercise the right. The case of Speiser v. Randall, 357U.S. 513 (1958),presents a

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-Honorable J.W. Edgar, page 5 (M-417)

situation closely analogous to the problem presented by Article 6252-7, Section 3. In Soeiser, the thing desired was a state property tax exemption provided veterans ofWorld War II. In order to obtain the exemption, the State required a loyalty oath reading as follows, 357U.S. at 515:

"Ido not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign Government against theUnited States in event ofhositilities." Exemption was denied solely for refusal to execute the oath. The Supreme Court held this to restrict free speech without due process of lawbecause itplaced on the exemption claimant theburden of proving he was aproper person to obtain the exemption.
The Court observed inSpeiser, 357 U.S. at 518:
"It cannot be gainsaid that adiscriminatory denial of a tax exemption for engaging in speech is a limitation on free speech." Article 6252-7, Section 3,places on the author of a textbook the burden of proving he isaproper and loyal person in order tohave his books considered by the Board of Education. According to the above cited cases, this isan abridgement of the First Amendment rights of free speech, press, and assembly without due process of law.
A companion case to Speiser involving the same problem is First Unitarian Church v. County of LosAnqeles, 357 U.S. 545 (1958). Inboth Speiser and the First Unitarian Church cases the problem concerns not somuch the oath itself as the use - being made of the oath.
It is the opinion of this office that the oath required by Article 6252-7 isunconstitutional as a condition precedent to

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-Honorable J.W. Edgar, page 6 (M-417)

consideration of abook for the same reasons itwas held unconstitutional as a condition precedent to employment inGilmore v. James, supra.
It isalso the opinion of this office that the requirements of Section 3ofArticle 6252-7 provide for an unconstitutional use - of the oath for the reasons set out in Speiser v. Randall, supra.
You have indicated inconnection with your request some concern as to the scope of valid inquiry which may be made concerning the authors of the textbooks under consideration in the event no loyalty oath may be required. Under Article 267533, Vernon's Civil Statutes, the duties previously devolving by law upon the "StateTextbook Commission" are now tobe performed by the "State Board of Education." The Board shall appoint annually aTextbook Committee, whose duty it is to examine all books submitted for adoption and tomake written recommendations to the Board relative to the "teachable value of thebooks." The Board isvested with thebroad discretionary authority to adopt those textbooks found tobe most suitable under any reasonable plan or method deemed best by it. Cf:Attorney General Opinions No. v-407 (1947)andV-417 (1947). The State Board of Education may adopt policies, rules, and regulations for carrying out its duties. Article 2654-3, V.C.S.
In the selection of textbooks, the author's background and qualifications towrite aparticular textbook may be apertinent and legitimate matter of inquiry. Konigsbers v. State Bar, 366 U.S. 36 (1961)distinguishing Speiser v. Randall, supra, pp 54-56, from the cases involving "no attempt directly to control speech but rather to protect from an evil shown tobe grave, some interest clearly within the sphere of governmental concern." Such an inquiry, whether by questionnaire or administrative interview orhearing, isnot prohibited by the Constitution or statute. The author should be accorded the right toanswer, to explain his answer, ormake such qualifications thereto ashis conscience demands, including the right to refuse to answer. Consideration by the Board of suchmatters, along with other factors which may bear upon the author's qualifications towrite an objective and informed work, in the author's particular

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Honorable J.W. Edgar, page 7 (M-417)

field of expertise, aswell as thework itself, are permitted. The State's right to demand a loyalty oath as a condition precedent to consideration of the textbook isthe prohibited actwhich the foregoing decisions have outlawed.
In the Koniqsberq case, supra, an applicant for admission to the California Bar refused to answer any questions relating to his membership in the Communist Party. The Supreme Court found that this matter did bear upon the applicant's qualifications and upheld the action of the court inrefusing to certify him on the ground thathis refusal to answer had obstructed a full investigation intohis qualifications and such inquiry was constitutionally permissible. Inquiry which showed reasonable cause tobelieve proceeds from textbook royalties were being used to support illegal activity, would probably permit refusal to purchase the book, regardless of the merit of thebook.
The policies, rules, and regulations in the selection of state textbooks tobe used have been left to the Board's discretion. Our courts will uphold the action of the State Board of Education so long as its rules do not contravene any applicable laws or the Constitution. Adkins v. Rogers, 303 S.W.2d 820 (Tex.Civ:App. 1957, error ref., n.r.e.)
SUMMARY The State Board of Education may not require the loyalty oath prescribed byArticle 6252-7, Section 3,Vernon's Civil Statutes, as aprerequisite to consideration of a textbook by the Board of Education. However, the State Board of Education isnot prohibited from making reasonable inquiry into thebackground qualifications of an author towrite aparticular textbook, whenever pertinent, inreaching its

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-Honorable J.W. Edgar, page 8 (M-417)

ultimate discretionary determi?ation ofwhich textbooks are themost suitable for adoption. Yo&very truly,

D C. MARTIN
Prepared by Samuel D. McDaniel Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman Sally Phillips Bob Davis Tom Bullington James Quick
W. V. GEPPERT Staff Legal Assistant
HAWTHORNE PHILLIPS Executive Assistant

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