Earl Warren: Number 14, B. T. Shelton et al., Appellants, versus Everett Tucker Jr., etcetera. Mr. Carter.
Robert L. Carter: If the Court pleases, appeal involves the constitutional validity of an Arkansas statute, which requires all schoolteachers in the institution -- public institutions of higher learning and all public school teachers and supervisor and personnel in the public schools, to file an affidavit listing all of their organizational connections as a prerequisite to -- for employment. The statute is number Act 10 and it was passed at a -- at the second extraordinary session of the General Assembly of Arkansas in December of 1958. At that time, the session was called by the Governor to deal with the problems of -- which had come about by virtue of this Court's decision in the school segregation cases and specifically by virtue of the decision of the Court of Appeals in Aaron versus Cooper. The appellants say that the statute is unconstitutional for two reasons. One, we -- we say that this is a broad proscription of the freedom of association of the schoolteacher with the inevitable consequence that it is of destructive of academic freedom in the public institutions in Arkansas. And we say secondly that this is in effect, race legislation, because the purpose and -- and intent of the Act, by virtue of it on -- actually on its face and by virtue of it in the time in which it was passed, was intended to prohibit and frustrate advocacy of school integration in Arkansas and the freedom of the teachers to in -- involve themselves in this kind of activity.
John M. Harlan II: You say on its face, what are you referring to in the statute that the --
Robert L. Carter: On -- the statute was set out, Mr. Justice Harlan, on the beginning at page 3 of -- of our -- the brief of the appellants. If you will read Section 7 --
John M. Harlan II: Seven?
Robert L. Carter: Seven, which is at the bottom of page 5, it is hereby determined that the decision of the Supreme Court in schools segregation cases require a solution of a great variety of local problems etcetera. We think that that and the call in the address that the -- of the Government, indicates and a -- a purpose to proscribe integration -- an advocacy of integration of the public schools.
Felix Frankfurter: Can you derive that just by reading that Section?
Robert L. Carter: Well, no, sir.
Felix Frankfurter: Mr. Carter, would you disagree as an abstract session with the first sentence of that Section? No stop at -- at the bottom -- of comma.
Robert L. Carter: You mean the -- the --
Felix Frankfurter: “It's hereby determined that the decisions require solution of a great variety of local public school problems of considerable complexity immediately and which involve the health, safety and general welfare,” suppose -- would you disagree with that statement?
Robert L. Carter: No, I wouldn't, Mr. Justice Frankfurter, I wouldn't disagree with the statement but I -- the statement itself of course, is -- it gives us no help -- you -- in terms of what?
Felix Frankfurter: But I thought, on the face is exactly what it means that you take a statement by itself.
Robert L. Carter: Well and that -- as far as -- as we're concerned in terms of giving meaning to what this or what this -- the statement intent -- what the statement was meant to -- to cover. We think that the -- the purpose of the special session, the Governor's statement which illuminated the session --
Felix Frankfurter: Then you go --
Robert L. Carter: Reasonable.
Felix Frankfurter: Then you go outside of the case.
Robert L. Carter: Well --
Felix Frankfurter: This is -- this isn't just the way of quibbling, you may be in right in what you've last said, but I wouldn't say that on its face, as I understand, on its face means if you just need it, it compels that -- that meaning.
Robert L. Carter: Well, our -- well, our -- our view is that the statute is void on its face without regard to its racial implications and -- and with regard to that, I think that -- or we will try go out the position. We also feel that the statutes as a racial disarm.
Felix Frankfurter: That I understand. You mean that it require any teacher in any educational institution to give a list of the clubs, associations, corporate institutions of which he is a member which is what the statute does on its face. That on it -- that is impermissible under the Constitution.
Robert L. Carter: Yes sir, that's our position.
Felix Frankfurter: That I understand.
Robert L. Carter: That's our pro -- proposition. And I would -- now --
Earl Warren: But you don't rely -- and do you rely on that section alone that you have read or do you rely on the other -- on -- on the real body of the Act.
Robert L. Carter: That -- Mr. Chief Justice, we were -- on that for the broad general proposition which I've stated --
Earl Warren: Well, let's --
Robert L. Carter: -- in our first attack.
Earl Warren: Let's don't get too broad and general. Let's get down the case now.
Robert L. Carter: Well if the --
Earl Warren: You were asked the question what do you rely on and all you cited to us was -- was that section. Now, if there's anything else in the Act, I suppose you read it to us.
Robert L. Carter: I would. I was attempting to cite that section for was to the -- was to the effect that I -- that I was arguing that this was racial legislation. What we had in terms of the statute -- our attack on the statute as being a prohibition on the -- of the freedom of assembly of the teacher. We rely on the terms of the statute itself, not only of the Section 7, but all of the sections because of what it -- what it -- it requires the teacher to do. This is the -- this is our portion in terms of that and we feel that the statute is unconstitutional on its face because of the fact that it -- it does -- does take away from the teacher the right and the freedom to associate without, we say, any -- any relationship or meaning, any of the yardsticks to this Court has held or required in statutes of this kind. The -- the statute, Section 1 of the statute at page 3, says that its purposes are to assist in the administration and financing of the school and to -- and this -- the legislature says that it's going to be beneficial to the school systems to require these affidavits. Now, the -- the statute, as set out in Section 2, indicates that every teacher and superintendent is going to have to give these affidavits. There is no indication of what kind of organizations are -- are to be listed, that all -- all organizations and not only membership in the organization, but any organization which the teacher has paid -- which he regularly play -- pays dues or makes the contribution, all of these are required to be listed. On page 4, we've -- the statute sets out the kind of -- of affidavit which is required. Now, in Arkansas, teacher contracts are entered on a -- on an annual basis. There is no tenure in the -- in Arkansas as far as we know, except for the fact that if -- if your -- if you -- if a teacher is not given a notification within the specified period, then she's entitled to -- to be retained for the following year.
Felix Frankfurter: This -- this statute applies to every public educational institution in the state, does it not?
Robert L. Carter: Yes, it does.
Felix Frankfurter: That includes the University of Arkansas?
Robert L. Carter: That's right sir.
Felix Frankfurter: Do I understand from what you last said or a minute ago said that the professors or full professors of the University of Arkansas has merely an annual tenure?
Robert L. Carter: Well, I -- as I understand it, Your Honor, the contracts are entered on a yearly basis.
Felix Frankfurter: But has that applied to the University, I'm just curious about it.
Robert L. Carter: As far as I understand it, it does apply to the --
Felix Frankfurter: Well, then --
Robert L. Carter: -- to the University of Arkansas there -- there are, in terms of the colleges and institutions, there maybe some rules and regulations which they have but they are required to enter a contract with the teacher, it is my understanding, every year.
Felix Frankfurter: What other institutions of higher -- higher education are there not enclosed inside the University?
Robert L. Carter: Well, the -- the only other one I know of is this -- the Negro college, the college for Negroes which, I think, is the Arkansas Agricultural Mechanical and Normal College and that's the only corporate institution that I know of. There may be others, but I'm not aware -- aware of it.
Felix Frankfurter: How large are the faculty? Did you happen to know how large the faculty they have there?
Robert L. Carter: I know, I do not --
Felix Frankfurter: In University of Arkansas, there must be considerable faculty.
Robert L. Carter: Well, this is a -- as I understand the -- the college for Negroes is a -- is a big institution. Now, the statute does require that this be listed and that therefore, each year when the teacher comes to have a contract for employment, this kind of affidavit has to be filed. Now, the appellants here are a teacher, the named appellant here is a teacher in the public schools, he's taught in the public schools in Little Rock, Arkansas for a period of some 25 years. There's no dispute about the fact that his work was satisfactory. There was no complaint about his work in terms of his fitness and suitability. There's no controversy about the fact he has filed an affidavit that he is not a member of any organization which advocates the overthrow of the Government by force or violence. He has indicated in his -- in the -- in the affidavit to the complaint that he is a member of the National Association for the Advancement of Colored People and that his purposes in joining that organization was to improve the Negro status in general. He has refused to file the affidavit required on the grounds, as alleged in the complaint, that this is a violation of his rights and the rights of other teachers to freedom of association. The other appellant is the -- an Arkansas Teachers Association which is an organization of the Negro teachers in Arkansas. And they are bringing the action along with the named appellant, Shelton, on behalf of themselves and of all the Negro teachers in the public institutions in Arkansas. The --
John M. Harlan II: This affidavit that he filed, was that a voluntary filing in the sense --
Robert L. Carter: Well, this was --
John M. Harlan II: -- or was it in response to the questions that he was asked?
Robert L. Carter: This was -- this was -- the affidavit that I'm talking about that Shelton has filed --
John M. Harlan II: On that --
Robert L. Carter: -- was filed in connection with his complaint. This was filed in --
John M. Harlan II: Oh, in connection with his complaint?
Robert L. Carter: Yes sir, as an exhibit to his complaint.
Tom C. Clark: Perhaps, he didn't file it, didn't he?
Robert L. Carter: No, sir. He refused to file an affidavit.
John M. Harlan II: I understand you --
Charles E. Whittaker: Mr. Carter, Act 10 was held -- was it (Inaudible)
Robert L. Carter: Subsequent section, sir.
Charles E. Whittaker: (Inaudible) certain organizations including NAACP?
Robert L. Carter: Only of the NAACP, I believe.
Charles E. Whittaker: Only of the -- and that Act was held unconstitutional?
Robert L. Carter: That's right, sir.
Charles E. Whittaker: And that is quite embezzling?
Robert L. Carter: Yes, sir.
Potter Stewart: Now, that law was not passed to the same -- the same legislative question.
Robert L. Carter: That was passed with the subsequent session at the -- at the 1959 regular session of the -- of the General Assembly which I think occurred some six months after this session.
Potter Stewart: That law has been held unconstitutional by the District Court --
Robert L. Carter: Are these by --
Potter Stewart: It was not before the State Supreme Court prior, before us, is that right?
Robert L. Carter: That's right, sir. The only --
Charles E. Whittaker: It hasn't been held unconstitutional both by the Eighth Circuit, as I understand it, and also by the Supreme Court of Arkansas.
Robert L. Carter: No, sir. It was not an issue in the Supreme Court of Arkansas, because there was no issue with respect to this broad -- as I understand in the next case. The appellant here was a member of the NAACP and he attacked -- the attack therefore, was made both on the Act 115 and on Act 10. The court below held that the Act 10 was valid on -- and held that it had -- that they had to look at the two title statutes separately. They held that Act 115 was unconstitutional and that they declared that the -- this man could not be fired because of his membership in the NAACP. Now, subsequent to that decision, the appellant continued to refuse to file the affidavit required by Act 10 and he was notified by the school board that because of his refusal that he was not to be employed for the 1959, 1960 school term. So that he was in fact, fired because of his refusal to sign the -- to fill out the affidavit. Now, we think that the statute is unconstitutional, Act 10, without regard to the first issue that I was raising. That is taking it -- viewing the statute as if it were not passed at the second extraordinary session as mere -- as if it had no import at all with respect to race. We think that the statute is bad, because of the fact that the statute, it seems to us, fails to meet what we regard or what we feel are the yardsticks that this Court has laid down for upholding and validating the statutes of this kind. As far as those yardsticks are concerned, we think that there are three. And they are that there must be the statute, if the statute impinges on freedom of speech, that the statute, there must be some compelling justification for it which must be demonstrated. We think that there's nothing in the history of this legislation or in the record here to show that there was any great need for this statute, any justification for it at all. The second requirement we believe, is that the statute, if there is an equal statute, that there must be some rational connection between what the statute seeks to achieve and the restriction which is imposed. Now, we don't believe that there is any connection between assisting in the administration of financing of schools and benefiting schools and the problems caused -- raised by the school segregation cases, any connections between that and the restriction on freedom -- on the freedom of association of the public school teacher. And even if those measures are met, we think that the statute has failed to meet a third yardstick, which this Court has imposed, and that is that if an impingement on speech is validated, the statute, which validates, must be in such terms that it cannot be utilized to restrict Constitution -- the Constitution exercise of each and other area. In other words, what we've tried to use, we've used the language of the Court that was used in sometime ago and has not been, as far as we know, used in subsequent recent cases, but the idea was that the statute has to be narrowly drawn and confines of the specific regulation, the specific restriction which is allowable. Now, we think that on all of these measures, the statute must fall, because what we feel to be the policy of the reason of the court below, is that the court below says that these teachers association, teachers habits, and so forth are relevant to determine the fitness in the school system. We think, of course, that the school -- the school authorities have the right to investigate the teacher to determine fitness, etcetera. But what we think that the school authorities cannot do is, in order to attempt to do that to restrict the freedom of association of the teacher entirely on the ground that by in this way, they may uncover some evidence which is relevant to fitness. We think that they are required to make a decision and a declaration as to what association they regard as being relevant to the issue of teacher fitness which they are seeking to do something about. Spell that out, require the teacher to list those associations, if they are, and then at that point, the statute comes here to be measured -- to be measured by the yardsticks of this Court as to whether, in fact, the associations which had been listed or had been required to be listed are relevant to the issue of fitness. Now, we think that the reliance on Garner versus the Los Angeles Board and the reliance on the Lerner case and the Beilan case and Adler case on this place. In the first place, this is not an issue of subversion here at all. We also believed that -- and because of that, we don't think that they can be in reliance on that and we think that the language in those cases has to be related to the issue of what the Court had in mind or what the Court slurs the State was attempting to do, was that there was some correlation between the question of fitness and the subversion or inquiry about subversion, which the school authorities were attesting. We don't have that problem here. That problem is not at all involved in this case in any way. The other thing is that the argument is made by -- in the appellees' brief that this is -- this statute is not bad because after all, the teacher is not required to be fired. In other words, it doesn't -- it burdens but it doesn't punish speech. And we feel that this does not help support the regulation, because of the fact that this Court has held on many occasions from Thomas versus Collins through the cases such as the NAACP versus Alabama and Bates versus Little Rock, that the fact that the restriction does not punish, merely burden speech that this does not keep it from being a violation and infringement of freedom of association. So that the fact, as we admit, that the school authorities are not required, they are there told that you list this and actually and in the abstract, once the teacher is -- list these organizations and may well be, they argue, that she will not be required. And maybe membership in the -- in the NAACP or membership in the Urban League or these other kinds of organizations will not require that the teacher be fired and this, of course, is true. But the point is that the restriction which is bear imposed, we feel, imposes upon the teacher a burden of what this Court has described in Smith versus California as a self-censorship. And because the inevitable result, we think, is that the teacher being required to list these organizations whatever they are, the tendency is going to be for the teacher to, therefore, involve herself in and be concerned with an organizational activities, only the things that she or he regards as safe or the things that will meet with the approval of her superiors. Now, this is a kind of a loss of freedom, of a sense of freedom of the teacher, which we think would have or we have argued would have disastrous result on the question of academic freedom.
John M. Harlan II: Do you say that the state has got no right to acquire as to any associational relationships of a respective teacher?
Robert L. Carter: No, sir.
John M. Harlan II: Is that your position?
Robert L. Carter: No, sir.
John M. Harlan II: What -- what are the limits that that language requires?
Robert L. Carter: We think that the limits are -- the limits have to be that those that are related to fitness, to her suitability and trustworthiness, I think those are the terms that the Court has used in several cases in the public schools.
John M. Harlan II: Now, how can you determine in advance sort of a particular associational relationship is or is not relevant to fitness?
Robert L. Carter: Well, then our theory on that, Mr. Justice Harlan, is that the State is in no position to determine in advance. It has no reason to restrict it and impinge upon the association. We think that the State cannot say that you've got to make a -- make an inquiry to all of the association relationships on the grounds that maybe they will find one or two if they look through them that may be related to fitness. We think that they have to spell it out and say that these various organizations are related to fitness and attempt to restrict them. Otherwise, we think that the yardsticks of the Court has drawn with respect to permissible limits on the freedom of association would be barred.
John M. Harlan II: In other words, what you're saying is the statute is too broad.
Robert L. Carter: That's right. That's one of our --
Felix Frankfurter: All of the statutes are restricted to inquiry into membership or association with any organization that concerns itself on purpose of using of a more or less, meeting the standard -- concerned itself for education. Do you object to that? Would that be too vague?
Robert L. Carter: I -- what I would -- if it concerns -- concerning itself with education, I would think that -- let me put it this way, Mr. Justice Frankfurter. I'm -- I'm not trying to avoid the question but I would think that that statute would be closer. It may well, in terms of the vagueness, be something that -- looking at it, we've -- I might not be able to go all the way, but it would be closer to what this Court has laid down as the necessary limits. I would think that that certainly, it could be argued that an organization concerning itself with education have some relevance to the question of the teacher's fitness in the public school. I don't know what these organizations follow.
Felix Frankfurter: Suppose it said -- suppose my statute would say, "predominantly concerned with education."
Robert L. Carter: Well --
Felix Frankfurter: -- because all sorts of organizations -- you have, indeed, concerns with self-education.
Robert L. Carter: That's right.
Felix Frankfurter: League of Women Voters concerns itself with education.
Robert L. Carter: Well --
Felix Frankfurter: NAACP concerns itself with education.
Robert L. Carter: Yes sir.
Felix Frankfurter: All the brotherhood -- Railroad Brotherhoods concerns themselves with education.
Robert L. Carter: Well --
Felix Frankfurter: Now, couldn't it find out whether their members -- suppose they have oral interviews -- suppose they have oral interviews to be inversed to feel a -- area about to which I'm more acquainted with which I'm more acquainted than other, and you think of engaging a professor in history, you asked him, "What have you written? Under who did you study? Where did you get your degree? What are your interests and what association? Can't you ask him to what association he belongs?
Robert L. Carter: Well, I've -- I think that if you are interviewing -- interviewing them, this man in this kind of context in which you are asking, where do you study? Where did you get any degree and so forth? It would seem to me that the -- asking what his associations are, that at that point, you are narrowing your inquiry to association and relationships that are relevant to the issue which is before you at this question as to whether this man is -- has the qualification which you feel desirable in your school system.
Felix Frankfurter: But do you think -- you wouldn't make a difference, would you, between what you've been asked on the basis on which you refused employment?
Robert L. Carter: No, sir.
Felix Frankfurter: Orally, face to face or to ask on paper.
Robert L. Carter: No, sir, I would not.
Felix Frankfurter: Would you ask him, if he's been in the war, whether he's a member of the Legion? Then he says, "No, none of your business."
Robert L. Carter: Well, I think that -- I would take the position that that kind of inquiry is outside of the -- outside of the competence and the power of the State, because it seems to me that it has no right that -- what he does and what associational relationships he has in terms of employment in the school systems, it seems to me, actively related to the issue of who's with Mr. teacher, and I thought of --
Felix Frankfurter: Will you think if I hire person to teach history or economic or sociology or psychology, and I ask him, "Do you belong to the Legion?" I can't say -- I am asking you, because I want to get your attitude toward an organization like the Legion. Do you think that's outside of -- what I would think might bear on the kind of a brain he has or what he's thinking about?
Robert L. Carter: Well --
Felix Frankfurter: -- or what he thinks is relevant in the forces -- in the non-governmental forces that make for American life?
Robert L. Carter: Well, I would think that that would be outside of that.
Felix Frankfurter: Why? Why isn't that relevant, what I think? If he says, "I think the Legion is (Inaudible), the opposite, why isn't that relevant in what kind of a person he is?
Robert L. Carter: ell, it seems to me if that --
Felix Frankfurter: -- or take the League of Women Voters, and let's try, is this a dangerous time in which to bring into question anything concerned with the flags are I think in League of Women Voters?
Robert L. Carter: Well -- well, we'll let -- we'll let --
Felix Frankfurter: Why isn't that relevant --
Robert L. Carter: Well, in --
Felix Frankfurter: -- as to the function of private organizations and how they pursue their pressures of poor legislation --
Robert L. Carter: Well, it seems to me --
Felix Frankfurter: Why isn't that relevant as to what kind of view he has in teaching of the social courses of America? Why isn't that relevant?
Robert L. Carter: Well, it seems to me that if you -- if you have this -- if you'll make the inquiry about the League of Women Voters, if the Court pleases, what you -- excuse me. What you are you are doing when you make this kind of inquiry, it seems to me that you are, at that point, making a restriction and a judgment on -- in respect to the teacher based upon the exercise of a right of freedom of association, and therefore --
Felix Frankfurter: Well, that -- if I do, then of course it's unconstitutional but we're here to discuss whether I do.
Robert L. Carter: Well, I think that -- I think for example that the reason I am -- I had difficulty when you list organizations is the fact that it seems to me that there maybe organizations. I don't -- I'll be frank with you, I just don't know of what organizations, but the fact that a man is a member of the NAACP or the League of Women Voters or so forth and so on or believes in them, what organization that has in terms of his relevance to teach, but --
Felix Frankfurter: It has relevance --
Robert L. Carter: -- it may well --
Felix Frankfurter: It has relevance to his outlook on problems with which is a scholar and a teacher is concerned.
Robert L. Carter: Well, then let me put it this way, that if --
Felix Frankfurter: He can have any view he pleases. I am not preventing him from having views, but isn't an institution entitled where the man has an irresponsible view about the right of association. Suppose he says, I think it's wrong for veterans to club together. It's wrong for women to do thus and so. Don't you think that's relevant to what a man does in a classroom?
Robert L. Carter: Well, when he -- what he thinks about and what he says in terms of whether it's wrong or not, it seems to me, it doesn't have any -- you're not talking in terms of his thought processes that he has expressed.
Felix Frankfurter: Well, that --
Robert L. Carter: Not with respect to --
Felix Frankfurter: Don't you suppose that teachers' thought processes have some relation to whether I should -- whether I should hire him as a teacher?
Robert L. Carter: Yes, that's right. But I think that when you start listing specific organizations that you take this out of this kind of -- this kind of statute that we have here.
Felix Frankfurter: Now let me put you another case. That recently as this Saturday, I received in the mail with considerable postage caused from the sender of fixed thing that consisted of reprinting of the Protocols of the Elders of Zion, you know what that is, don't you?
Robert L. Carter: Yes, sir.
Felix Frankfurter: Well now, had I asked the fellow, don't teach history or sociology, what do you think of the Protocols of the Elders of Zion as a doctrine, and you'd say, well, you're now searching my thought processes.
Robert L. Carter: Well, if you asked a man, for example, if you asked a man, what he thinks of the NAACP, what he thinks of the League of Women Voters.
Felix Frankfurter: Can I ask him that?
Robert L. Carter: If you ask him that, I don't' think that you're -- you are therefore asking him whether he belongs to the organization or not.
Felix Frankfurter: I did ask -- I didn't come to that. I wanted to ask whether I can ask him those questions.
Robert L. Carter: I would think so, yes. I would think that if -- on the basis of that you feel that some information in regard to that might be helpful in your determination, yes. I think that you'd be entitled to asking him.
Felix Frankfurter: Well, do you think it is in credit that you think I'd be an odd stick to ask those questions?
Robert L. Carter: Well --
Felix Frankfurter: Or would you think they were relevant, not as an exception of foolish inquiry?
Robert L. Carter: Well, my difficulty, as I say, is that --
Felix Frankfurter: I'm not saying that's this case, what I'm trying to search what the limits of this problem are, because these are very complicated, as you know, very complicated and subtle questions.
Robert L. Carter: Well, I would feel that to ask a man in terms of what his views were on various problems in the world today as evidence or in the society's evidence by the attitudes of various organizations, I would think that that would be legitimate but this --
Felix Frankfurter: But there are a lot of people of whom I couldn't ask that without their right to say, "It's none of your business." Isn't that true?
Robert L. Carter: That's true. That's right. But what I have here and that this is the point that I -- here, if the Court -- I think that even the Supreme Court of Arkansas or the court below said that what the -- what the petitioner or the appellants were contending was that the State had to ask 150 questions instead of one, and I think that this is really the difference between this case and the case that -- the situation that you were mentioning. It does seem to me that there is an important difference here that if a state feels that some of these things are relevant to the issue of teacher fitness, then it seems to me that they have to ask the 150 questions rather than ask the one question, which is going to bring into play we think is a breach of the teachers' -- total breach of the teachers' association of freedom. I feel that this case, if this statute is upheld, what it really amounts to is that the teacher is, by virtue of her teaching, is being deprived completely of any right to freedom of association.
Potter Stewart: Mr. Carter, because of the lack of tenure in Arkansas, which apparently is true, are these teachers all in the same status as if they were new applicants for jobs each year?
Robert L. Carter: Well, as a practical matter, I would -- I would hardly think so, Mr. Justice -- Mr. Justice Stewart. I think that what happens is that they have -- the contract has to be renewed each year. There are no limits in terms of, as far as I know, in terms of reasons that the State can have. If the teachers taught there for 50 years, the State may send them a notice within the statutory timeline and say we're not going to employ for the next year.
Felix Frankfurter: Well, for no reason at all?
Robert L. Carter: Yes, sir. As far as I -- the case cited by the court below in its opinion, it seems to -- in the opinion below which is -- we've set out in the -- in the footnote as to the statement of jurisdiction, seems to stand for that proposition. I can find it on page -- on page 31 of the stating of jurisdiction in footnote 3. I don't -- the statute -- that this is a kind of teacher contract employment, which I think is fairly common in some of the states. And as a matter of fact, I don't think it operates that way, because I think if a teacher -- teacher has taught for any length of time, that -- and has taught satisfactorily basis, the probability that you've realized or he realized, they want to stay in school system, they will remain. But insofar as the bare legal proposition is concerned, this would be permissible.
Potter Stewart: Would you thing there might then be a difference between what the State or the public school system could ask a brand-new applicant for a job about whom the system would know nothing, that there might be a difference between what the State could constitutionally ask from such an applicant, and/or the State could constitutionally ask of its existing teachers about whom it presumably knows a good deal insofar as their teaching ability goes and their experiences?
Robert L. Carter: I -- I don't see, I'm unable to see the difference, and I think that the inquiry which the -- if the inquiry, particularly in this kind of situation, if, as I believe that the inquiry has to be limited to the issue of teacher fitness and suitability to teacher. This is where I think the limits are. Then it seems to me that it may -- that the kinds of questions that can be asked, we should be the same both for the old teacher and the new teacher, because they maybe more probing and maybe some of these things you might be able to find more about. But it seems to me if it -- within these limitations that they would be substantially the same.
Potter Stewart: Well, I'm not assuming you have a new teacher, I'm assuming you have somebody who's never taught, who has never had implication to experience academic freedom. He just comes and applies and he wants a job in the Arkansas public school system. Do you think Arkansas would say, "Well, we don't know anything about you, would you please list the -- your various vital statistics including the organizations to which you would belong?" Might it not be relevant if he says he's a member of the, I don't know, with the bartender's union and so on, and just as his educational qualifications would be relevant.
Robert L. Carter: Well --
Potter Stewart: For a -- for a new person whom this school system knew nothing.
Robert L. Carter: Well, I come back to the same position, which I was entitled to take in the reply to Mr. Justice Frankfurter. It seems to me that a state can't serve that we -- well, we want to know all about you. I mean I feel they can say, "We want to know all about you, insofar as all about you has relevance to the issue of teaching in the schools." And the State can't say that, "This is difficult. We don't' know, there are a whole a lot of things that we may like to find out, and therefore, we want you to list everything." I think the State has to, itself, make a decision as to what it regards as being relevant. And in this regard, I would make no distinction between the old teacher and the new, because it seems to me that what would have to happen is that the State therefore has to ask the specific questions, which it thinks relates to the issues which it wants to bring out. Otherwise, it would rather as far as I'm concerned, this, to me, is the rise of the reasoning below. I would -- I, of course, don't come here saying that they can't ask anything, that they are allowed to ask questions and impinge upon the teachers' freedom of association other than the issue of their loyalty and so forth. Of course there's a number of things which determine fitness, but I think that the State has to spell that out as to what it thinks is related to. Otherwise, it seems to me that you -- your whole concept of the right of freedom of association, which the Court has laid down, goes out of the window. This is our position.
Felix Frankfurter: Mr. Carter, I don't want to take too much of your time that I think I did already, but I want to pursue the inquiry of my brother Stewart regarding the implications of this one-year tenure in Arkansas. Suppose the State -- suppose the educational authority, forgetting this statute. Suppose the statute haven't been on the books or ceased to be on the books, asked just as a voluntary act on the part of teachers, if they wish of their own free will, to give a list of their associations, just like this, with no legislative compulsion, and some do and some don't. At the year, suppose the educational authorities do not renew -- do not rehire, if I may use that term about teachers, reemploy teachers, and they do not reemploy all those who did not make these voluntary disclosures. As you understand the law of Arkansas that stands, is there any redress for that?
Robert L. Carter: Well, under the law of Arkansas, as I understand it. Well, I -- and I think the law of Arkansas has to be embellished with the law of due process, which has been set down by this Court. Now, under the law of Arkansas, as I understand it, if those teachers are -- their contracts are not renewed without any reason, then the teacher would have no redress except, it seems to me, that the due process question would arise if the teachers can show that their failure to renew was based upon their refusal to issue -- I mean to sign this affidavit. Then, I think no matter what the law of Arkansas is that this would -- this case would at least come here as a federal due process question which would have to be determined on the basis of decisions of this Court.
Felix Frankfurter: Some arbitrary exercise had the right of the legislature of the teaching -- of the Board of Education whatever they're called, not to renew, is that it?
Robert L. Carter: That's right. Now, if they gave no reasons, then it seems to me that -- and they could not prove that there was -- there were any invalid reasons and I think that the law of Arkansas, as it is, is that there's no redress. But I think as I -- I don't remember the -- right off hand the cases, but it seems to me that last term, there were several cases of this kind. And the fact that that the Government has the power but -- to fail to renew -- but dismisses or refuses to renew for an unconstitutional reason, then it's -- then I think that as far as I understand the law that there is redress. Now, I think that we have set out in our brief, our reasons and the correlation between what we regard the -- this freedom of association of the schoolteacher and academic freedom. We think that this is very clear and that if you can't have a free teacher, you aren't going to be able to have a teacher who is free enough to instill any feeling of freedom of thought and so forth in the classroom. The -- on the question of this being raised legislation --
William J. Brennan, Jr.: Before you get to that Mr. Carter, do the arguments you've just made draw any support to the fact that the answers required are not as to immediate memberships but as to memberships within five years, last five years or that kind?
Robert L. Carter: Well, I think on that that I would have to -- I think that I would be foreclosed for making that kind of argument by virtue of the decisions in Garner versus the Board of Public Works. I think that the Court has said the past conduct maybe irrelevant to fitness and this is -- we're not making this argument at all.
William J. Brennan, Jr.: All right.
Robert L. Carter: Now, on the final point, if I may hurriedly, we think that if -- that by virtue of the fact that this was passed, as I indicated, at the second extraordinary session and it was passed that this is the -- with a package of legislation, which was school closing and intended to deal with the whole question of school segregation. But actually, it was intended to affect the rights of teachers to participate in group organizations advocating integration. And on this basis, we feel that this statute would be bad for the -- under the principle of the NAACP versus Alabama and Bates versus Little Rock.
Earl Warren: Mr. Friday.
Herschel H. Friday Jr.: Mr. Chief Justice and may it please the Court. I represent the Little Rock Special School District, the board of directors thereof, and the superintendent. We were parties to this proceeding because Mr. Shelton, the plaintiff, was an employee of the Little Rock School District. He had been an employee for 25 years prior to this time. As Mr. Carter has accurately stated, there is nothing in the record to indicate any disqualification on his part by virtue of incompetency or any other reason than the fact that Mr. Shelton refused to file the affidavit required by Act 10. The School District, under those circumstances, later after the conclusion of the trial, stipulated so there would be no question in this record that due to his failure, his contract was not renewed. That stipulation came in later. It was made necessary here because of the proceedings that developed and so that there would be no question and we had no disposition to let the matter go off on any -- a procedural point one way or the other. Little Rock School District takes no issue with reference to the wisdom of this legislation. We do not think the wisdom of it, one way or the other, is important. I believe Mr. Carter stated here, there had been no showing in justification for the Act of any necessity for it. Certainly, the record was not developed in that particular but we would state our position that this is immaterial and is not properly before the Court. There's no necessity for such a showing, if the legislature has acted properly within the scope of its power or jurisdiction, then it is not a question to challenge whether it -- the motives and what not that it acted on it or the wisdom that it used in that regard. Now we would state the position of the School District in the case. I think I can state it fairly simply. It may not turn out to be such a simple situation. Certainly, freedom of speech, freedom of association, freedom of assembly are protected and have been so held by this Court by the First Amendment, which is read into the Fourteenth Amendment as certainly being of such a fundamental nature as being part of due process of the Fourteenth Amendment and therefore applicable as to state action. Now, there is no question about that, the decisions leave no doubt that that's there. I have a little trouble with it here. The test seems to have been that the particular legislation that's challenged amounts to a substantial abridgement of these rights that are there. We have pointed out that while these rights certainly exist, there are no sanctions in this Act, unlike the usual situation of the cases that come up when you get into subversive activities or disloyalty or what not. This Act, if you list any number of organizations or if you list the Communist Party, the Act does not say that you're discharged for that reason, the Act simply says, "You will file the affidavit and give the information." Now, of course, the sanction is there that if the affidavit is not filed, then the school districts and those others under the Act, the institutions of higher learning, there are several incidentally in our Arkansas. The University of Arkansas is the largest with some 5,000 or 6,000 students. There are several other state-supported colleges in the State of Arkansas.
Felix Frankfurter: I was just about going to ask that I --
Herschel H. Friday Jr.: Yes, sir.
Felix Frankfurter: -- sent for the membership of institutions in the Association of American University Professors and I find there are five of them. The Arkansas Agricultural Mechanical College, Arkansas Polytechnic College, (Inaudible)
Herschel H. Friday Jr.: Yes, sir.
Felix Frankfurter: The Arkansas State College. What is that Mr. Friday?
Herschel H. Friday Jr.: Arkansas State College is at Jonesboro. It -- most of them, I am not sure, most of them would cover the arts courses, probably not -- other than the University, none of them haven't brought a curricular to be of the university class.
Felix Frankfurter: And as the Arkansas State Teachers College.
Herschel H. Friday Jr.: That's primarily a teachers college and is at Conway.
Felix Frankfurter: And so that there five that are members to this --
Herschel H. Friday Jr.: Yes.
Felix Frankfurter: -- University Professors Association.
Herschel H. Friday Jr.: I -- I believe five would cover it. There's a one at Monticello, one at Magnolia and so forth. Yes, sir.
Felix Frankfurter: They are all state -- wholly state supported?
Herschel H. Friday Jr.: Yes, sir. Other than their cash funds, they have student fees, certain student fees and what not, but primarily, they're called state-supported institutions of higher learning.
William J. Brennan, Jr.: Well, if that's the case then Mr. Friday that each professor of the university also must annually sign this affidavit?
Herschel H. Friday Jr.: Yes, sir. That's my understanding. On the tenure question, I might address just a moment on that. I could give the Court my understanding of it. I have substantially agreed with Mr. Carter's analysis that we have a statute in the State that provides that unless notice is given within a specified period at the time of this litigation, it provided, that in the event a teacher was under contract with a school district and notice was not given by the parties, one way or the other, within a 10-day period after that the particular school term, that contract was automatically renewed for one more year. So in that sense, if no notice was given, you had tenure for a year. Now, there are good many school districts, and I think, I am outside of the record on this but as a matter of information, I think, the University of Arkansas, which by regulation of the particular governing body, the board of trustees, there are in the case of my client, the board of directors of the school district, have given the teachers tenure. And we have specified conditions upon which a teacher maybe discharged, but we cannot of course, go contrary to a state law. School districts are creatures of the state law and if the state says, we must have an affidavit, of course, we have adhered to the state law. But if an affidavit was filed, then I think we would be bound by the tenure provisions that we read into our contracts and the information that maybe developed by the affidavit would -- could perhaps be used a little differently by different school districts depend on what -- depending upon what their particular regulations that they may put in their contracts may be. Alright, but in general, aside from that, I think it takes nothing to discharge if you give the notice as required or after the one year carryover. You can discharge with or without cause.
Felix Frankfurter: Any of the financing of the school districts or the school within the school district, are they by the -- how are they financed?
Herschel H. Friday Jr.: The school district get financing in two ways. They have what we call, ad valorem taxes, which under our present constitutional provision, each school district can vote by putting up a budget ahead of time and specifying a mileage in having the people voted ad valorem taxes, without limitation.
Felix Frankfurter: Within the district, of course.
Herschel H. Friday Jr.: Within the district, yes, sir. In addition, the school district gets state aid on the basis, or forgotten of figures, a little over half would come in from their own taxes and perhaps a little less than half would come in from state aid which is distributed on a minimum foundation and apportionment act of the state legislature. Now, as I stated, we do not challenge the proposition that under certain circumstances, the freedoms of assembly and of association and of joining any type of organization that a teacher might be required to list in this affidavit, we do not challenge the fact that they would fall within the First and therefore brought into the Fourteenth Amendment, under certain circumstances. Now, in the situation here, I am not sure that we hit that substantial abridgment of the freedom of association. Now, in the cases that the Court has considered, if we're talking about a private situation, which the facts of this case show, that is as to the parties, these affidavits were, under these facts, treated as confidential. Now, there is nothing in the law that makes them confidential. There is nothing in the law that makes them public records. And the Supreme Court of Arkansas, when it passed on the case, really left the question open. But they did point out that they could be treated as confidential. Now, as long as this, they are treated as confidential information, as long as we do not get into a situation, such as Alabama or Bates, whereby if we are concerned with NAACP membership, so that the mere public knowledge of that membership interferes substantially with the right of association, because it discourages one to associate, if they are going to be subjected to punishment by physical abuse or annoying phone calls. Now, we do not have that situation here on this record. We are not talking about anything as constituting a substantial, an abridgment of these rights as those -- as those cases are. Here, we have information furnished to a school board and the other case you will have, it's furnished to of course to a board of trustees of the University by policy. They keep them confidential; no one knows about it, we feel is a proper inquiry. So, I feel first on the balancing of the two considerations as we see it. I'm not sure that we even have a substantial abridgment of these rights. Although, as if it had been in the cases where the Court has said that these are so important that we'll weigh this against the considerations of the State if the State has strong cogent reasons for acting in this field, even though they abridge them some, we'll weigh one against the other. Now, in the weighing process, I see nothing in these facts that gets it even in the category of those cases. Alright, now, the other consideration --
Felix Frankfurter: Why -- why do you -- may I ask you why you say that --
Herschel H. Friday Jr.: Yes, sir.
Felix Frankfurter: -- because if it is contended by Mr. Carter, the board is asking that this legislation requires that he answers questions, information of which he may withhold, and to that extent, you're intruding upon what do the private deserves, on that argument, isn't that true?
Herschel H. Friday Jr.: Yes, sir. Mr. Justice, I am not sure that I follow you.
Felix Frankfurter: You said you want -- you said you couldn't think there was any abridgment here because the suit is maybe kept confidential, isn't that right?
Herschel H. Friday Jr.: Yes, sir.
Felix Frankfurter: Now, I'm suggesting --
Herschel H. Friday Jr.: I understand.
Felix Frankfurter: I'm suggesting that if the inquiry goes to things which maybe kept private even to disclose to a responsible body like the trustees of universities -- University of Arkansas. And to that extent, you're compelling somebody to say something or put something on paper that he may withhold.
Herschel H. Friday Jr.: Yes, sir. I suppose Mr. Justice, I was speaking in a manner of degree. Even on that analysis, I could think -- I should think it would not be as important to a person if he were disclosing it to a group of gentlemen, five or six in number, who were interviewing him concerning his position. Certainly, in a matter of degree, we do not have the same substantial type abridgment, if he had to disclose it to the whole world.
Felix Frankfurter: But once you invoke the questions of degree, you invoke balancing, don't you?
Herschel H. Friday Jr.: Yes, sir. I think we invoke -- we have matters of degree in the whole question. I think that's the position, certainly, sir.
Hugo L. Black: How could it be balanced?
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: How could it ever -- how could it be balanced?
Herschel H. Friday Jr.: How could it --
Hugo L. Black: Without his divulsion, if he does belong to some association. What you have is an affidavit that requires him to tell all the associations?
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: You can't get out of that by saying, I belong to these and others I do not go -- I do not think is relevant.
Herschel H. Friday Jr.: No, sir.
Hugo L. Black: If he fails to do that, he loses his job that's --
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: So that the only way he could -- if there is to be a balance here, the only way it could be done to see whether or not he might be subjected to other telephone calls and harassments, would be for him to say, I belong to such and such an organization which would subject me to harassment. If it -- could it be done in any other way?
Herschel H. Friday Jr.: No, sir.
Hugo L. Black: Under that statute has drawn, which requires statement of all organizations, even if they have used to harass, it has no limitation at all. As no -- is there any way that he can consistently, with this law, refuse to tell all the organizations he belongs to in this affidavit without even being guilty of perjury or losing his job?
Herschel H. Friday Jr.: No, sir. Other than with the limitations of acting in good faith and knowledge that this Court has put in, I think if he inadvertently forgot one or something of that sort, certainly we aren't talking about that. But, I would say that on its face, the statute reads and you have correctly stated, he is required to list these associations that he has belonged or to which he's been a dues-paying member within the five-year period.
Hugo L. Black: But then, he might, for all we can say --
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: -- belong to some organization that would subject him to the same kind of harassment that was referred to in NAACP against Alabama.
Herschel H. Friday Jr.: Well, in that sense, it -- my point was, in the Alabama case, certainly the Court found on the facts as I recall --
Hugo L. Black: But we couldn't find here on the facts without divulging what organization he belongs to, could we?
Herschel H. Friday Jr.: On the facts that are before this Court, we do not get into that end of it, as I see it. Now, all --
Hugo L. Black: Do you -- do you not because of the breadth of the affidavit it has to be made? Is it not in -- inescapable that you do reach it? Must we not assume that he might belong to some that would subject him for the harassment or should we assume the other?
Herschel H. Friday Jr.: I think you would have to assume, Your Honor that it would be divulged to these 12 that these 12, would then not treated as confidential that it would then be divulged to persons who were off the temperament to subjecting to that harassment. I think we'd have to assume several things that may well result from the application of this Act, which might possibly own down the line and make it unconstitutional in its application, but cannot affect its constitutionality on its face, which as we see it, is the question now before the Court.
Hugo L. Black: Following up --
Herschel H. Friday Jr.: -- we could assume many things. I think certainly, sir.
Hugo L. Black: Following up Mr. Justice Frankfurter's question, is what I had in mind.
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: Is this, if it be true that this is broad enough to require revelations and divulsions of organizations in which he belonged, it might subject him to the harassment. He therefore, has a right to privacy in that regard, a constitutional right --
Herschel H. Friday Jr.: Alright, sir.
Hugo L. Black: Couldn't the State abridge that by saying, we won't tell anybody?
Herschel H. Friday Jr.: Yes, sir. I'd say that even though we concede, he has the constitutional right. I'd say the State, in proper circumstances of which our position would be this was one, can abridge that right. Is there a compelling reason here for the State that justifies an abridgment of that right? Now, there was not in Alabama, there was not in Bates as this Court found.
Hugo L. Black: Maybe I'm -- maybe I'm telling -- but the thing I have in mind, it may not be relevant and it seems to me it might be. He said he was not in -- well, that was because we knew what the organizations were.
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: They could test it out.
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: The only way you could revert -- review to bring about what these organizations are is for him to give out the names of those to which he belonged, which would subject him to this -- what was found in that case to be a very important matter.
Herschel H. Friday Jr.: Yes, sir.
Hugo L. Black: As constitutionally speaking.
Herschel H. Friday Jr.: Yes, sir. I I'd suppose my position is that it's not just enough to find to get a final decision of the issue before this Court that there is first, a constitutional right that the constitutional right may well be abridged and that there will be interference with his complete freedom of association by facts that may develop, if a full disclosure is made. I think it's not enough just to find that. We also, or the Court also, makes an inquiry to determine whether or not, the State is properly asked, acting within its field, to get the information and balances one against the other, and then determines whether there is an abridgement within limitations because of what the State is doing and the need for the information that the State is getting in this situation. I don't know whether – properly --
Hugo L. Black: Well, that's your position. You can make your net so broad that it would include not merely, taking the argument that's been made. It would include not merely the revelation of things that, alright, it teaches, the Board ought to know them, it would include something that might bring about the very results that were mentioned in Alabama. You make your net so broad that there's no way to escape revelation of it, divulging it, unless -- and to get it protected, you think with the bets of the statute.
Herschel H. Friday Jr.: The statute is as broad as could be. It asks the blanket question. There isn't a question about that, sir. It asks the blanket question, list them all. There is no -- there is no attempt to define them, to list professional organizations or list any other category. It says, list all organizations.
Hugo L. Black: And your answer to that seems to be that there are some -- if you might have to -- it was going to be abridge this Constitution and I know that it would, but since it's been held, since they would hold it confidential, that's enough to justify the breadth of the statute.
Herschel H. Friday Jr.: I don't think that it need necessarily, Mr. Justice, go off on the point of whether they even hold it confidential or not. I think then as long as they are holding it confidential, certainly, we do not have the substantial type abridgment that we may want to guard against. Now, even if it's not held confidential, there still would be the basic balancing of the State's interest on one hand against the individual's interest on the other in the form of the abridgment of legislation.
Earl Warren: Mr. Friday, may I ask you this question and maybe at little feel but you're -- you were telling us about the limited tenure that you have in Arkansas and you told us that within certain 10-day period, the contracts could be terminated or --
Herschel H. Friday Jr.: Yes, sir.
Earl Warren: Or -- by either party.
Herschel H. Friday Jr.: Yes, sir.
Earl Warren: Now, is there anything in that tenure that would protect the man from termination of his contract for being a member of the NAACP and for no other reason if that was disclosed in this affidavit?
Herschel H. Friday Jr.: If I understand you Mr. Chief Justice, if I understand your correct -- your question correctly, you are asking me that if -- is there's anything in tenure however, we get it in Arkansas --
Earl Warren: Yes, yes.
Herschel H. Friday Jr.: -- that would protect the man against being discharged if -- for being a member of the NAACP, if that were disclosed in the affidavit.
Earl Warren: Yes.
Herschel H. Friday Jr.: Is that correct?
Earl Warren: Assuming that there is no other reason for his discharge, as the superintendent or the president of the University at least had said this to one of these appellants.
Herschel H. Friday Jr.: Now, first, of course, there's nothing unless in a particular district by board action. There is no tenure provision at all. Now, I would assume that there would be no reason in the absence of some tenure provisions by a particular board of directors that a school district need to assign any reason. They could simply give notice that you are discharged as a practical matter would be very difficult to find out whether they did it for this reason or did it for another. But now, if your question is, if you could establish, of course, even though they have a right to discharge them without cause, if they use an unconstitutional cause that is if you discharge a man on a basis of discriminating against him because he is a colored man, then I think you would -- you would have certain rights even contract rights supposedly that could be enforced.
Earl Warren: Well, let's don't say it, say, a colored man, let's say it's white man who belongs to the NAACP.
Herschel H. Friday Jr.: Yes, sir -- yes, sir.
Earl Warren: Now, could he be discharged solely for that reason if it was disclosed in his affidavit?
Herschel H. Friday Jr.: And that -- that's the sole reason listed?
Earl Warren: Yes, sir.
Herschel H. Friday Jr.: Other than how his constitutional rights would be affected, by virtue of the action taken, I'm not sure of trying to think Your Honor, I'm not sure. Supposedly if the school board, which when it acts, it constitutes state action, he might well violate some constitutional rights, maybe if you get into the civil liberties and what not. But as far as under -- just under the laws of the State of Arkansas, unless the particular provisions of tenure that were there stated, incidentally as do Little Rock, that you have to have some reason which bears on fraud, dishonesty, incompetency, and what not. Unless we could bring it within one of those provisions or unless the facts develops that this discharge, under the tenure rights that he has, must be on these reasons that we give. I'd have to fit the NAACP and -- and see where we -- if it -- when the -- when I analyze the facts and see if I came out with an answer that I had brought it within or without what his contracts right were by virtue of that tenure. Now --
Earl Warren: What your legislature has said? I don't know whether it's in this Act or one of the others that the NAACP is a captive of the Communist Party.
Herschel H. Friday Jr.: The legislature recited a finding of a committee to that effect in Act 115. Yes, sir.
Earl Warren: That's the one that was struck down?
Herschel H. Friday Jr.: That was the one that was held unconstitutional by this Court, the three-judge court --
Earl Warren: Yes.M
Herschel H. Friday Jr.: That upheld the constitutionality of this one in which we did not plea.
Earl Warren: Yes. So, would you mind telling us if most of your school districts do or do not have this tenure that is established by their own departments?
Herschel H. Friday Jr.: Mr. Chief Justice, I do not know the answer to your question.
Earl Warren: That's alright.
Herschel H. Friday Jr.: I would think most probably do not. I have found a very few of them have the detailed administrative procedures as the Little Rock District has. Yes sir.
Felix Frankfurter: How many districts, school districts are there in the State of Alabama?
Herschel H. Friday Jr.: There are over 400. Your Honor, too many. Yes, sir.
Tom C. Clark: Mr. Friday, this notice if given -- it had to given 10 days after the school term ends?
Herschel H. Friday Jr.: Yes, sir. After the end of the school year. That was the provision of the statute at the time. And the Supreme Court of Arkansas held in a situation when the school district did not give the notice within the 10-day period. The teacher was automatically rehired on the same terms for the next year and the courts suggest -- yes sir.
Tom C. Clark: And then when you have to file an affidavit under this Act?
Herschel H. Friday Jr.: The affidavit on this Act has to be filed once a year Your Honor.
Tom C. Clark: (Inaudible)
Herschel H. Friday Jr.: Eventually, I've forgotten the exact time that is there. It's before the -- before the --
Tom C. Clark: I don't think it's in the Act. And when I read it, it came after if you have not receive the notice which would be tantamount to a renewal and he came back in the fall, or I'd rather -- he had file it before the 10 days.
Herschel H. Friday Jr.: As a matter of policy, the superintendant sends out notice and states that contracts will be considered in May, you must have your affidavits then by such and such a time. So, probably, each school district is more or less regulating that but when they're requiring the affidavits to be in prior to the new contracts being issued.
Tom C. Clark: You require them -- this district requires them before the 10 days expired then?
Herschel H. Friday Jr.: Yes, sir. Actually, we got in a situation where some of these questions unanswered because the lawsuit was filed in the federal court and a preliminary restraining order was issued enjoining in a class action, which through some uncertainly as to how broad it was covered, enjoining everyone from taking any action in one way or the other. So, everyone including the University of Arkansas had to hold up on it. So, we finally got around and everyone went by the 10-day period and these questions were never answered. And then we gave them another time limit. I think in this situation, he was given up to June the 25th as I recall, of that year, to get in the affidavit after the three-judge federal court dissolved the injunction and held that Act 10 was constitutional. He was given a specified time limit.
Tom C. Clark: In any event, while you construe the act of the filing affidavit prior to renewal, (Inaudible) of the renewal 10-day period.
Herschel H. Friday Jr.: I hadn't really -- I hadn't really thought about it, Mr. Justice Clark, but I think that I would answer, yes to that.
William J. Brennan, Jr.: Well, I just wondered, Mr. Friday, if that is in what Section 4 of the statutes would require. As I understand that Section 4, it provides that as a violation by the school district if any contracts entered into with anyone who has not filed an affidavit.
Herschel H. Friday Jr.: Yes, sir. In other words, there are penalties. In fact, you can recover, I think, against the board that enters into a contract.
Earl Warren: Mr. Friday, that I probably just -- or just one more question on the tenure matter. Assuming that the -- in the case of an old-time teacher like this one, the board sends him notice that his contract will not be renewed, is he entitled to a hearing in which cause must be shown for his discharge, and if so, what kind of a hearing is it, and is there any judicial review of it?
Herschel H. Friday Jr.: We did not so interpret it. He was given no hearing and had no opportunity for judicial review.
Earl Warren: He has no opportunity for a hearing?
Herschel H. Friday Jr.: Yes. In that situation, we treated it, it maybe subject -- now, these are questions, perhaps they have not been answered for the state court.
Earl Warren: Yes.
Herschel H. Friday Jr.: If an employee decided to raise it by virtue of having a contract automatically renewed or by virtue of having tenure rights which are read into his contract by administrative procedure. But, the school districts, being preachers of the legislature, and the legislature said, that he must do these things, we had taken the position and had so advised them and no one had challenged it or taken to court if the affidavit were not filed. They were written a letter and stating under these circumstances, we will not be in position to renew your contract. And Mr. Shelton comes --
Earl Warren: And would that be the same -- would that be the same regardless of what the board might have had in mind when it refused to renew his contract? Suppose the Court --
Herschel H. Friday Jr.: Do you mean if the board had another reason --
Earl Warren: Yes, yes.
Herschel H. Friday Jr.: -- not to renew it?
Earl Warren: Yes. In other words, does the board have to disclose to the teacher the reason for not reviewing -- renewing his contract? And then, after having done that, is he entitled to a hearing?
Herschel H. Friday Jr.: Under state law, aside from what you may put in the contract itself in particular districts, it is my understanding the board does not have to give any reason and he -- and the discharged employee is entitled to no court review (Inaudible).
Tom C. Clark: That's that Wabbaseka, if I was --
Herschel H. Friday Jr.: Wabbaseka. Yes, sir.
Tom C. Clark: That's what that at all.
Herschel H. Friday Jr.: I think, substantially that's correct Your Honor.
William J. Brennan, Jr.: Mr. Friday, are there pension provisions for teachers such as this, pension on retirement are there?
Herschel H. Friday Jr.: Yes, sir. We have teacher retirement in Arkansas. I'm -- Mr. Justice, I couldn't give you the exact breakdown but we do have teacher retirement. We have some overlapping, there's a question on right now of social security, but then, it's substantially a social security situation but we have a Teacher Retirement Act, yes, sir.
William J. Brennan, Jr.: And would the -- would this --
Herschel H. Friday Jr.: I know of --
William J. Brennan, Jr.: -- petitioners' rights would have been affected anywhere --
Herschel H. Friday Jr.: I would have to answer you. I did not check it. I know of no reason why he would be disqualified from receiving teacher retirement, that's correct.
Tom C. Clark: There is not any stay of this Act (Inaudible).
Herschel H. Friday Jr.: I'm sorry, sir.
Tom C. Clark: There is no stay of this Act by in the Court.
Herschel H. Friday Jr.: No sir, not that I am aware of.
Felix Frankfurter: The District Court -- the District Court denied it, did it not?
Herschel H. Friday Jr.: There -- there was a --
Felix Frankfurter: No -- no motion was made. No result was held to this Court were stated --
Herschel H. Friday Jr.: No, sir. There -- there was an application for a stay that was denied, it was not pursued further, as I understand. Alright, perhaps Mr. Carter can answer that more accurately. I had my recollection there was in this -- in this case. I would just touch briefly on the other points that we have in this situation. There is the allegation here that the Act, if not bad for other reasons because it is too general, we do not feel it is too general, then it is bad on the basis of condemnation by association, I suppose there's a proper charge of words. Now, on the two general points, our position is that this is a proper area for state inquiry that the state legislature, in its wisdom which should not be tested or reviewed, determined that in the proper administration of the public schools, it would be helpful and school boards were directed in accordance with that determination to get this affidavit, to get a listing of the associations. They were not told to discharge anyone. They were not told to take any particular action one way or the other with reference to the information that they got. The facts show that the school boards involved in this case have treated it as confidential as other personnel information. There is no right to a public meeting or public records on information regarding personnel. Otherwise, our statute provides, you must have those meetings. We say that the State can properly ask this information that it is not too broad under the standards as set up by this Court, that there is no necessity to attempt to confine. Alright, therefore, we say for that reason, the right of the State in this appeal, under the facts of this case in testing this act as to whether it's constitutional on its face, at least, outweigh any abridgment that may exist of freedom of speech or freedom of association. Alright, now, further quite apart from that and if that would be the result, if this were a session of the legislature when there were no desegregation problems in the State, I think it is argued here that because it was passed at a special session of the Legislature of the State of Arkansas in 1958, when there were such problems, that by virtue of being part of a package, it is bad by association because it was one of the laws that were adopted by the legislature, which have been condemned and are being condemned here as attempts to, I believe the language is, defy the decision of this Court. Now, we state with reference to that that the allegations are not sound. They are not sufficient grounds to condemn this Act, to hold it unconstitutional on its face. There is nothing in the base of the Act that makes it unconstitutional. There is nothing in the facts that makes it unconstitutional as to its application. We state that the motives of the legislature, the motives of the Governor of the State of Arkansas in his proclamation and in the speech that was introduced in this record to which we object it on the grounds that it was not proper or immaterial. As this Court has held and as the State of Arkansas has held, the motives make not difference if the legislature is acting within the proper scope of its authority, we will not inquire as to why we did -- as to why it did these things. Now, that basically is our position. Thank you very much. Mr. Ramsay, alright, sir, represents the Pine Bluff School District.
Earl Warren: Yes sir, yes sir. Mr. Ramsay.
Louis L. Ramsay, Jr.: Mr. Chief Justice Warren, we appear in this case as attorneys for Pine Bluff School District No. 3 and Arkansas AM&N College. Arkansas AM&N College is the college that was founded in the late 1800s for the Negro citizens of our State and possibly, you haven't heard quite as much about Pine Bluff as you've heard from our sister city of Little Rock, and so I should tell you that we are about 45 miles from Little Rock and Arkansas AM&N College is located there. We represent the school district and the college.
Felix Frankfurter: There is someone that said, happy is the city that has no dispute. [Laughter]
Louis L. Ramsay, Jr.: I would agree sir. I would say this that here, answering your question earlier Mr. Justice Frankfurter about the number of faculty at Arkansas AM&N College, there are approximately 100 professors there or teachers and with the administrative staff, there are about 160 there. And that would be one of the colleges that you mentioned a moment ago, exclusive of the University.
Felix Frankfurter: Is that co-education?
Louis L. Ramsay, Jr.: Yes, sir it is. As -- as indicated in the record, neither of the clients whom we represent in this cause are here because of any failure on the part of any teacher or professor to sign the Act 10 affidavit. We were brought into this case after the original action had been filed. Subsequently, an amended complaint was filed making Arkansas AM&N College and Pine Bluff School District No. 3 parties in order that there would be a class action. And so at that time, we did raise a question in the lower court as to whether or not, there was a justiciable issue or whether there was actually a case or controversy, but we were overruled there and did not pursue that in this appeal here.
Felix Frankfurter: I must've misheard. Did you say a minute ago that no one has failed to file such an affidavit?
Louis L. Ramsay, Jr.: In this -- in our case Your Honor, I said, no one had been dismissed or had failed to do it, yes, sir.
Felix Frankfurter: Had failed to do it.
Louis L. Ramsay, Jr.: Yes, sir. Now --
Felix Frankfurter: And then what is the controversy that comes up?
Louis L. Ramsay, Jr.: As far as we were concerned, we didn't feel that there was one. We were brought in as a class action to make it a class action since the plaintiff here filed, for themselves and other similarly situated, in order to make it a class action. Now, as far as Pine Bluff School District No. 3, the record in this case indicates that there were approximately 275 teachers. That 259 had already complied with the Act and that 16 had left the school system for one reason or another, the normal attrition I suppose of school teachers getting married at first one thing and another. But in any event, none of them were dismissed or not rehired for their failure to sign the affidavit. Now, with reference --
Felix Frankfurter: That must be stupid Mr. Ramsay, would you -- would you enlighten me. You say, you were brought in because of the class action, does that mean good fellowship? What is this? I didn't understand that. [Laughter]
Louis L. Ramsay, Jr.: No, sir. [Laughter] I can't tell that Court why we were selected except you will notice in the brief that they said Pine Bluff is an area near the center of the State, and of course, the Arkansas AM&N College being there, I'm sure that that was one factor in selecting us as a class defendant. Now, with reference to the college, I might say that the restraining order was issued prior to the time that the contracts for the college were issued. Now, that wasn't true as far as Pine Bluff School District 3. They had already gone through with their procedure of hiring and their contracts had been executed at the time the hearing in the lower court was held. We submit, as far as our people are concerned, our clients in this case that we can't agree with the basic assumption that seems to run through the brief filed in here by the appellant. And that is that the school districts will not act properly with reference to the information which comes from these affidavits. Now, as I suggested to you, the only thing that we have in the record as far as this case is concerned involving either Arkansas AM&N College or Pine Bluff School District No. 3 is a fact that they were executed, the contracts were given out, and apparently, caused no great problem in connection with it. So, I think that we cannot agree with the position taken by the appellants in this case that there will be an area of fear or they would be afraid to sign the affidavits, they can't continue to teach, and there would be a mass exodus from the systems. That isn't true as far as the facts show in this particular case. I would have to say that that's conjecture or speculation and isn't bourne out by what we held before you in this particular case. I would have to proceed on the basis that school districts, their directors are fair and impartial people, that they do the best job that they can under the existing law, and I am certain as shown by the evidence here in this case that they have not supplied any information that has been promulgated or shown by the affidavits in the cases which we have before you.
Felix Frankfurter: At all events that such -- what you call appeal would -- or concerned with the prospective of something that would happen next year, isn't that right?
Louis L. Ramsay, Jr.: Certainly, sir .Certainly, sir.
Felix Frankfurter: When is the Legislature of Arkansas in session?
Louis L. Ramsay, Jr.: It comes in -- in the next -- in January, sir, of 1961.
Felix Frankfurter: So then one can conjecture, we might conjecture that they might decide to reveal it.
Louis L. Ramsay, Jr.: Yes, sir. It's certainly good. Now, as -- if the Court said, I think in the Garner case with reference to knowledge and good faith, I believe in that case, there was an oath and the Court I believe, by Mr. Justice Clark wrote the opinion in that case and he said that he assumed. The Court was speaking. They assume that the Board of Public Works in Los Angeles would apply the oath in good faith or allow them to take to in good faith. I think that we -- the same assumption is true here. I believe that the school districts are entitled to a basis that they would apply the Act in good faith and certainly, that there could be some information that would be very relevant and very pertinent, both as to suitability and to fitness that would apply in the affidavits that are required by the Act. And I think that --
Earl Warren: Weren't there something in the record of one of these cases to the effect that the members of the school board said that they were under no obligations to keep these sayings confidential?
Louis L. Ramsay, Jr.: Your Honor, I believe that that will be in the Carr case which is the next one up in which I'm not in, but I think I can answer that question --
Earl Warren: Well, if you would but I --
Louis L. Ramsay, Jr.: -- because it's cited in the brief that we have in this case. The president of the University of Arkansas stated that those affidavits were not available to the public and were kept as confidential information and I believe that that is true of the school districts that I'm familiar with, at least. And I think it comes down to the bare facts of these, when we get right down to the lead of the case as whether the information required in these affidavits that is their organizations, professional, business, academic, if that has any relevance to their suitability or fitness for the job of the teacher. We submit that properly applied that it certainly could and there is no reason to believe that it would not be properly applied in the case that we have before the Court.
Earl Warren: If you have -- if you have another statement, you may --
Louis L. Ramsay, Jr.: I -- I believe that's all, Your Honor.
Earl Warren: You may pass.
Hugo L. Black: Can I ask you just one question?
Louis L. Ramsay, Jr.: Yes, sir.
Hugo L. Black: What is in reference to what you said. When a question of discharge of a teacher in the University of Arkansas contract, who has to pass it?
Louis L. Ramsay, Jr.: Your Honor --
Hugo L. Black: (Voice Overlap) to be discharged.
Louis L. Ramsay, Jr.: I'm not familiar with the answer to that question. It will probably be applicable in the next case which --
Hugo L. Black: Well, I -- I just simply asked because you think the --
Louis L. Ramsay, Jr.: I might --
Hugo L. Black: Question that you have said, it would not be -- it would be held confidential and I was just wondering who had to act on?
Louis L. Ramsay, Jr.: My assumption would be that it would be the board of trustees.
Hugo L. Black: How -- how is the board made of?
Louis L. Ramsay, Jr.: It's appointed over a staggered period of time with the ratification by the Senate, I believe.
Hugo L. Black: Appointed by whom?
Louis L. Ramsay, Jr.: Appointed by the Governor, sir.
Hugo L. Black: By the Governor?
Louis L. Ramsay, Jr.: Yes, sir.
Hugo L. Black: And approved by the Senate.
Louis L. Ramsay, Jr.: Yes, sir.
Tom C. Clark: Are all -- are the board in all the districts appointed by the Governor?
Louis L. Ramsay, Jr.: No, sir. No, sir, in the school districts, they are elected by the people, Your Honor. The board, as far as the colleges are concerned, are appointed by the Governor.
Tom C. Clark: Well, that the 400 are locally elected?
Louis L. Ramsay, Jr.: All of them, yes, sir.
Tom C. Clark: What's that the number -- what are they? Do they vary in number?
Louis L. Ramsay, Jr.: Well, I believe that be about seven or eight, on most of the --
Tom C. Clark: And you all find about the --
Louis L. Ramsay, Jr.: Yes, sir, we have 8 there.
Charles E. Whittaker: There's been any ruling by your Attorney General that it is confidential in nature?
Louis L. Ramsay, Jr.: I'm not sure about that. I believe that there had and I believe that they held that they were of confidential nature.
Charles E. Whittaker: Or didn't the Supreme Court in your State intimate that in the opinion -- its opinion?
Louis L. Ramsay, Jr.: Yes, sir. I think so. I believe Mr. George Rose Smith, Justice George Rose Smith, speaking in the opinion that was written in that case. It was said that if they should not vote, not vote in confidential, then of course, that will get into a --
Hugo L. Black: (Inaudible) confidential by whom?
Louis L. Ramsay, Jr.: Well, I would say the administrators of the school Your Honor.
Hugo L. Black: Administrators -- that wouldn't do any good if the board of trustees had found out.
Louis L. Ramsay, Jr.: Well, I think certainly, the board of trustees or the school board themselves, would be entitled to that information.
Earl Warren: Thank you Mr. Ramsay.
Louis L. Ramsay, Jr.: Thank you, sir.
Earl Warren: Mr. Carter.
Robert L. Carter: I -- I would just like to clarify one question that was raised, I think by Mr. Justice Frankfurter and as the question of the status to this -- as is extent, when the --
Speaker: As to what extent.
Robert L. Carter: Broad -- a restraining order was secured in the -- in the lower court and was extended until here. Thereafter, after decision was made striking down Act 115, a stay was applied for in the court below and was denied and we applied for a stay here, which was denied by the -- by Mr. Justice Whittaker, I believe. So that --
Charles E. Whittaker: You were asking for more than stay. You were asking me to make effective what this (Inaudible) have denied, is that right?
Robert L. Carter: Well, I wasn't -- we thought we were asking for stay of the reach of the statute until -- why we could appeal here. Now, thereafter, the appellant here, Shelton, he had therefore refused to submit the affidavit and he was dismissed by virtue of that. Now, beside of this, that was the only thing I have in terms of clarification.
Earl Warren: We'll recess now.