Brief for Appellants — Shelton v. Tucker

|

IN’ THE

Styrene Court of the United States

October Term, 1960 “if

No. 14

en

B. T. SHELTON, ef al.

: : . Appellants,

Vx

EVERETT TUCKER, JR, President, etc. ef al.

ad

On A>peal from the United States - District Court for the

Eastern District of Arkansas |

‘ BRIEF FOR APPELLANTS

Rowvert L. Carrer,

20 West 40th Street,

New York, New York.

Tuap D. WiitraMms,

S001, West 9th Street,

Little Rock, Arkansas.

6 is Attorneys for Appellants.

Haron B. ANDERSON, <

Hlowarp, Jr,

of Counsel,

INDEX -

9 ACh

NE: TE ok os veces enenee leas eas vesesasn® 1

Jurisdiction ............5- SLADE PPR rere: .

Questions ee eee ee renee eae ae —.

es TS os wc oe a es ee ce we akeea 2

Statement: ....... SY OP are re ar Pr ULM f

Summary of Argument ................. rrr ree i)

Argument:

LL Act 10 Destroys Academic Freedom and De--

prives the Publie School Teacher of Freedom

of Association and Privacy In Violation of the

Due Proeess Clause of the Fourteenth Amend. .

nient.to the Constitution of the United States 1

Il. Act ¥0 Is Designed to Prevent Exposure In

the Classroom to Any Views At Variance

With the State's, Poliey in the Field of Race

IIS on ccs et Sees eas vee. 17

RN 0c deb a cba eawenseues Peete TTT Tere 19

Arrenpex: Act 115.0f 1900 ......... 6.0005 epee 2

| Table of Cases |

Adler v. Board of. Education, 342 U.S. 485 ...... 9, 10, 11,

a ; as we . 13,14, 16-

Bates v. Little Rock, he er 10, 11, 15, 18

Beilan v. Board of Edueation, 397 U8. ..... &£ Re,

4 Q ? ; 13, 14, 15

Butler v. Michigan, 352 U. S. 380 ................ 15, 16

Varr vy. Young, — BRE en oie sees Ce as Ace aca ae

Cantwell vy. Connecticut, 310 U.S. 296.0 00.0000.. 11, 12, 14, 16

Carlson v. California, 310 U. S/106 Rrra ery aap fp Ale > 15,16

pe v. Los Angeles Board of Public W orks, 34!

Se ere MELEMEC ROSE REMORSE RST LETH 9°10, 11, 14, 15

ib

Pag

Kingsley Corp. ve Regents of thet niversity of New

York, 360 US, 684 0. ..--5--5- epee rer ry tae th

Cerner v. Casey, d07 UL S, 408 2.00660 ee eee: 9,10, 11, 15, 14

Lowell v. Griffin, 303 U.S. 404 ...----- eerateaens 16

Milk Wagon Drivers Union v. Meadow Moor Dairies,

ie oe ee oe. or caewes 16°

ALAC. Pv, Alabama, 357 U.S. 449.9, 11, 14, 15, 17, 18

Poulous v. New Hampxhire, A ee. ore 15

Roth vy. United States, 354 U.S. S76 ...2-. Leena 10, 15, 16

Sai v. New York, 334 U. Se renre oi. eee a

Siochower v. Board of Education, 250. Soe .... 13

Smith v. California, 361 U.S. OO coc <tesvesswrnes as 15, 16

‘ Staub v: Baxley, 355 U.S. 9138 22... 6 see eee Pere re 16

Sweezy v. New Hampshire, 354 U. 8. eS i<sevuwe 9, 11,12

* 13, 14, 19

Thomas v. Coins, 323 U.S. eae eee

Thornhill v. Alabama, 310 U.S. 88......------ ace 12.15

Whitney v. California, 274 U.S. WE xeetawes errr a.

Wieman v. Updegraff, 344 U. 5. ey 11, 12; 13, 14, 19

IN THE ;

“Supreme Court of the United States

October Term, 1960

No. 14

—-- 0-

B. T. Suepteon, et al., ,

| Appellants,

We

EveRett Trekker, a. ssident, ete., ef al,

On — from the United States District Court for the

Eastern District of Arkansas

BRIEF FOR APPELLANTS

Opinion Below

The opinion of the United States District Court for the

* Eastern District of Arkansas (R. 103-116) is — at

4 F, Supp. 351.

Jurisdiction |

This suit was initiated pursuant to Title 28, United

States Code, Sections 1331, 1343, 2281, 2201 and 2202 seek-

ing a. judgment’ declaring Act 10 ( requiring teachers to

disclose all organizational activities) of the 1958 2nd

_ Extr: aordinary Session, and Act 115 (making members of

the National Association for, the Advancem>=+ of Color ed.

People ineligible for public employment) of the 1959

Re; cular Session of the General Assembly of Arkansas -

unconstitutional, as violative of ‘the Fourteenth Amend-

ment to the Constitution of the United States and injunctive

relief against their enforcement. _

The opinion and judgment of the court below were

entered on June 8, 1959 (R. 115), pursuant to which Act

115 was held unconstitutional; and-Act 10 was sustained

as a proper exercise of state power. Notice of appeal was

filed in that court on June 25, 1959 (R. 118-120). Orders

extending the time. to docket the cause in this Court were

entered on August 3, 1959 (R. 121), September. 16, 1959

(R. 122), and October 16, 1959 UR. 122-3) by Judge J. Smith

Henlev, one of the judges who heard the cause in the court

below. The statement of jurisdiction was filed on November

23, 1959, and probable jurisdiction was noted on January

25, 1960. Jurisdiction of this Court rests on Title 28, United

States Code, Section 1253.

Question Presented

Whether a state may require as a condition of employ:

ment that teacher and administrative personnel in public

institutions of learning disclose to school authorities all

membership, regular contribution or dues, paying organiza-

tional connections within the past five years, without con-

travening the. constitutional guarantees of academic free-

dom and freedom of association secured under “the due

process clause of the Fourteenth Amendment to the Consti-

tution of the United States, where the disclosures: thus

required are not restricted to activities, and associations

relevant to a determination of trustworthiness, fitness, reli-

ability, competence or suitability for employment in the

school system? .

.

Statute Involved a

Act 10, 2nd Extraordinary € -ssion of 1958 of the General

Assembly of Arkansas provides as follows: |

et

For ax Act ro pe BExtTiITLEp: ** XN Aer to Proving

ASSISTANCE UN TILE ADMINISTRATION AND FINANCING

OF Ptusnic Scroous, axp to Require. Arrmavirs

FROM ADMINISTRATIVE’ AND Proressorntat Em.

PLOYEES, INCLUDING SUPERINTENDENTS, PRINCIPALS,

AND INsteeciors of THE ELEMENTARY AND SECON -

PARY SCHOOLS, AND COLLEGES AND UNIVERSITIES OF

THE Stare or Ark ‘sags Revative to Att Ixcon-

PORATED AND OR UNINCORPORATED ASSOCIATIONS AX)

ORGANIZATIONS To Wien They Have Betoxaen

on Have Been AFFILIATED Wirth ror tHe Past Five

Years; To Provive PENALTi¢s For Facute te

COMPLY, AND For Orner Purposes.”’

Be Ir ENactep BY THE GENERAL ASSEMBLY OF THE -

Stare OF ARKANSAS:

Section 1. It is hereby declared that the pur.

pose of this act is to provide assistance in the admin.

istration and financing of the publie schools of

Arkansas, and institutions of higher learning sup-

ported wholly or in part by public funds, and it is

hereby determined that it ‘will be beneficial to the

public schools /and_ institutions ‘of higher Jearning

and the State/of Arkansas, if certain affidavits “of

membership are required as hereinafier provided.

Section, 2.- .No superintendent; principal, or

teacher shall’ be employed or elected in any ele-

mentary Or secondary school by the, district. operat-

ing such school, and ‘no instructor, professor, or

‘other teacher shall be employed or elected in any

institution of higher learning, or other educational

institution supported wholly or in part by publie

funds, by the trustees or governing authority thereof,

until, as a condition precedent to such employment,

such superintendent, principal, teacher, instructor

or professor shall have filed with such board of trus-

tees or governing authority. an affidavit as to the

names and addresses of all incorporated and ‘or unin-

corporated associations and organizations that such

superintendent, principal, teacher, instructor or pro-

+

fessor is or \ ithin the past five years has been a mem-

ber of, or to which organization or associatien such

superintendent, principal, teacher, instructor, pro-

fessor or other teacher is presently paying, or with-

in the past five gears has paid regular dues, or to

which the same is making or within. the past five

years has made regular contributions. .

Section 3. Such affidavit may be in substantially

the following form: ;

_ Svate OF ARKANSAS

CouUNTY OF ...... Aer error.

I, (name of Affiant), being an applicant for the

os. position of ....... Piya Petry oe , at (name of

school or institution), being first duly sworn, do

hereby depose and say that | am now or have been

within the past five years a member of the follow-

ing organizations and no others:

(names and addresses of organizations)

and further, that I am now paying, or within the

‘past five years have paid, regular dues or made.

regular contributions to the following organizations

and no others: | ;

(names and addresses of organizations)

- ?

SOCeCCodgCeeePeaeese eee eeaege1c @ovanee see

Signature of Affiant

Subscribed and sworn to before me this ........

We OE oes ccveccmuesnredeses

Section 4.. Any contract entered into. by any

board of any school district, board of trustees of

any institution of higher learning, or ¢fher educa-

tional institutions supported wholly or in part by

public. iunds, or, by any governing authority thereof,

with any superintendent, principal, teacher, instruc

tor, professor, or other instructional personnel, ho

shall not have filed the affidavit: required in Section 2

x . a : . : Pf

{

hereof prior to the employment or election of such

person and priér to the making of such contracts,

shall be null and void and no funds shall be paid

under said contract to suek superintendent, pPin-

cipal, tea her, instructor, professor, or other instrue-

tional pe-sonnel; arty funds so paid under said con-

Aract to such superintendent, principal, teacher, in-

structor, professor, or other instructional personnel,

miay be recovered from the person receiving the same

and/or from the board of trustees or other govern-

ing authority by suit filed in the circuit ecurt of

the county in which such coutract was made, and

any judgment entered: by such court in such cause of

action shall be a personal judgment against the de-

fendant therein and upon the official bonds made by

such defendants, if any such bonds be in existence.

Section 5. Ewery person who shall wilfully file

a false affidavit under the provisions of. this act ‘shall

be guilty of perjury, shall be punished by. a fine of

-not less than five hundred dollars ($500.00) nor more

than one thousand dollars ($1,000.00) and in addi-

tion shall forfeit his license to teach in any of the

schools, institutions of higher learning, or other edu-.

cational institutions supported wholly or in part by

publie funds in this State. . All penalties collected

under the terms of this act shall be forwarded to the

State Treasurer to be placed by him in the ‘common

publie school fund. . !

Section 6. If any paragraph, sentence, ¢lause,

_ phrase, or word of this act shall be held to be uneon-

stitutional for any reason, such holding of unconsti-

tutionality shall not affect any other portion of this

act; nothing contained herein, however, shall be con-

.

strued so as to affect the validity of any contract .

entered into prior to the effective date of this act.

Section 7. It is hereby determined that the de-

‘cisions of the United States Supreme Court in the

schoo] segregation cases require solution of a great

variety of local public school problems of consider-

able complexity immediately and which involve the

health, safety and general welfare of the people of

the State of Arkansas, and that the purpose of this

es

act is to assist in the solution of these problems and

_ to provide. for the more efficient administration of.

- publie ediication.. Therefore, an emergéncy is hereby

declared to exist, and this act being necessary, for

the preservation of the public. peace, health - and

safety, shall take effect and be in force from the date | .

‘of its approval. Be, | ‘ .

_ This Jegislation became law on September 12, 1958.

Statement

‘Appellant Shelton, prior fo his refusal to comply»with

; Act 10 and his discharge therefor (R. 127-128), had been |

| _ employed as a teacher in the public schools of the Little

Rock Special School District for 25 years (R. 58). “On

April 3, 1959, he received from the Superintendent of |

Schools of the District a memorandum advising him of the

terms of Act 10. The notice requested that an affidavit

listing all his organjggtional connections over the past |

f.ve years be signed completed in the presence of a

notary public and returned on the morning of April 13.. It

was stated that the statuté required that the affidavit be filed:

. with the Superintendent before his teaeher contract for the

1959-1960 school year could be issued (R. 59). ae

_ -—Instead of complying, appellant advised. the Super-

* intendent in writing that he would not fill out the affidavit

because it violated his constitutional rights and the con- .

_ stitutional rights of others (R. 59); and on April 21,.1959,

the Present class action was instituted (R. 1). a

‘On May 2, 1959, an amended complaint, the basis of

the present proceedings, was filed ir which appellants, the

Arkansas Teachers Association, an organization of Negro

teachers in the.State of Arkansas, and ‘T. W.: Coggs, .its

Executive Secretary (R. 17), joined in the law suit as

parties-plaintiff, suing on behalf of the organization. a1d

all of its members *urrently employed in Arkansas as

teacher .or administrative personnel in institutions sup-

_. ported wholly or in ‘part by public funds (R. 17) The’

(R. 29-31),

oO

7

; ; o.

constitutionality of Act 10 and Act 115) was attacked on

the grountls that the Statutes were invalid on their faée.

and dé@prived appellants and -the class they represent of

Jiberty and property without due process. of law, of the

equal protection of the laws, and of rights of ‘freedom of

_ Speech and’ of association (R. 23, 24, 27). Declaratory

Judgments and injunctive relief were sought (R. 28-29),

_As an exhibit to the amended complaint, appellant

Shelton attached an affidavit setting forth that. he was not.

a member of any. organization which advocated the over.

throw of the government by foree; that he belonged to the

National Association for the Advancement of Colored

People to help promote the objects described in. paragraph

45 of the amended complaint (R.°26), and that he had‘ no

knowledge of anything to indieate that the N.A.A.C.P. was

or ever had been.a captive of any international conspiracy

.

Pursuant to- the provisions of Title 28, United States

Code, Seetion 2284, a special statutory court of three judges

Was designated by the Chief Judge of the Eighth Circuit

in an order dated April 27, 1959 (R. 13-14). A temporary

restraining order was entered on May 4, 1959 (R. 35-36),

extended on May 13, 1959 (R. 36-37) and on May 25, 1959

~ {R. 102). Appellees answered (R. 37-39 ; 40-41 ; 42-43) alleg-

ing that the court was without jurisdiction and that the com-

; plaint, as amended, failed to state a claim upon which relief

» could be g-anted ae

On May 25, 1959 a‘hearing was held.in the eourt below

(R. 44-91). At that hearing testimony was introduced

Showing that appellant Shelton had been employed as a

teacher in, the Little Rock Special School District for >.

years (R.58); that there had never been any complaint

about his work (R.,58, 63, 69) ; that he received a memoran-.

dum from Mr. Terrell E, Powell, Superintendent of Schools

as alleged. (R. 58): that he refused to file the required affi- | *

* Act 115 *- set-out in the appendix, infra, .

davit (R. 59); that he was advised on May 5, 1960, that his

contract would not be renewed’ for the’ 1959-60 school term _

(R. 60) ;‘that contracts were usually renewed in May (R.:

61) ; that unless notified to the contrary within ten days after ~

school closes, the teacher is automatically employed for

the next school term (R. 79); that he was not a member

of the Communist Party or of any organization advocat-

ing the overthrow of the government | by force (R. 61);

‘that he knew the. purposes of the N.A.A.C.P. were to

eliminate racial] discrimination, secure the. vote for all

qualified citizens, seek justice in the courts, secure equal

job opportunities and eliminate mob violence and police

brutality; that these purposes expressed the reasons for

his membership in the organization; and that he had no

_ knowledge of the N.A.A.C.P. being a captive of an interna-

tional Communist conspiracy (R. 62).

Testimony was: introduced concérning the Arkansas

_ Teachers. Association and its purposes (R. 75-77) ; that mem-

bers of the faculty of the Arkansas AM & N College (a col-

lege for Negroes} would be required to comply with Act 10,

but contracts had not been issued at the time the temporary

restraining order was entered (R. 77); that ali teacher per-

sonnel returning to the Pine Bluff Special School District

for the 1959-1960 school term had filed -the contested affi-

davit as required (R. 78-79).

The Attorney General testified that the Special Educa-

tion Committee of the Legislative Council of the State of

Arkansas had made an investigation and had concluded

that racial unrest in Arkansas was inspired by the Com-

munist Party, and that the N. A. A. C. P. was ¢‘heavily in-

filtrated with subversives and wittingly or unv ittingly”’

had become a captive of Cornmunist apparatus and that the.

_Council’s conclusions had been made available to the legis-

lature when Act 115 was enacter. (R. 81-88}.

On June & the opinion and4udgment here at issue were

entered. The court.struck down Act 1'* as contravening

the’ Fourteenth .Amendment to the Constitution of. the

: -

United States ad entered a declaratory judgment that tery

state could not require-that publie employees be discharged

merely because of membership in the NOAM ALC. iP. Act 10

Was sustained, however, on the grounds that decisions of

this Court had vindicated the state's authority to require

tmployees to disclose their orgapizational connections. In

reaching this conclusion,.the eourt placed heavy relianeé

upon Garner '\, Los Angeles Board of Public Works, 344 ;

U.S. 716; Beilan vy. Board of Education, 857 0. 8. 399:

* Lerner y. Casey, 397 USS. 468: and Adler y Board of Edu.

cation, 342 U. S. 485 (R. 103-116).

After-entry of the judgment below, the Little Roek She-

cial School District notified appellant Shelton that he had

until Jane 25, 1959, to comply with Act 10 (R. 125). When -

the deadline passed -without his filing the required affidavit,

appellant was ad cised on June 30 that his contract would

not be renewed for the 1959-60 school tern: (R. 127-128),

These post Judgment faets have been made a part of this

record pursuant to stipulation of the parties (R.123-124).

Summary of Argument ;

Act 10 is another state attempt to mandate conformity

aud to suppress dissidence in the field of race relations by:

restrictions which deter the exercise of rights of freedom of

association. Here, it is the freedom of association and

the privacy of the public school teacher and the ppublic’s

‘interest in the maintenance of: academic treedom in public

institutions of learning which are adversely affected.

The preservation of academic freedom and freedom of

association of the individual is of paramount importance,

not only as a necessary prerequisite to personal liberty,

but as an indispensable. ingredient of an open society. See,

&. ¥.,. Thomas y. Collins, 323 U. §. 916; Sweezy v. New

Hampshire, 354 U.S. 234; N. A. A. C. P. v. Alabama, 357

10

U.&. 49: Bates v. Little Rock, 361,U. 8. 516; ef. Mr. Justice

Brandeis, concurring in Whitney v. California, 274 U.S.

357, 373, 376; Roth v. United States, 354 U. S. 476.

The court below upheld Act 10-on the mistaken assump-

tion that it¢ sweeping interference with academic freedom

and the personal liberty and privacy of the school teacher

is consistent, with decisions of ‘this Court validating state

intrusions in this area. But nothing said in Garner v.

Los Angeles Board of Public’ Works, 341.U. 8. 716; Adler

- y, Board of Education, 342 U. S. 485; Beilan v. Board of

Education, 357 U.S. 399; or Lerner v. Casey, 357 U. S. 468, ,

or any other decisions of this. Court, countenances

the all-inclusive curtailment of acudemic and personal free-

dom here involved. While appellants do not disclaim. a

valid state ititerest in protecting the integrity of the pub-

lie school system, it cannot be demonstrated that such’ pro-

tection necessitates the suppression of academic freedom

and the teacher’s right to freedom of association which re-

sults from enforcement of this statute. :

The 2nd Extraordizary Session of the General Asseni-

bly of Arkansas, at which-Act 10 was.enacted, was called in

_ the summer of 1958 to promulgate a package of legislation

‘specifically designed to preserve racial segregation in the

public schools (R. 91-102). ~ The obvious aim of the statute

under contest here was to attempt to close off the classroom

from sentiment favering school desegregation or opp%si- -,

tion to the state’s decision to defy the Constitution of the

United States. Act 115, enacted at the subsequent Regular

Session of the General Assembly, in barring public em-

ployment to members of the N. A. A. C. P., merely made

explicitly applicable to all public employees what Act 10

necessarily implies in respect to teachers, principals and

superintendents. -

_ Appellants respectfully submit, therefore, that the strik-

ing down of Act 115, without invalidating Act 10.as well,

leaves school authorities free to achieve the uneonstitu-

tional objectives of Act 1*3 in the school system. F

Moreover, without regard to Act 115, Act 10 is a perni- |

cious and invidious restriction on the-freedom of associa-

tion‘of the publie school teacher. It js now/settled law that

publie employees ‘are not bereft. of constitutional rights

if freedom of speech and freedom of association. Wieman

+. Upeegeaff, 344 UL S. 183; Sweezy v. New Hampshire,

supra; Beilan v. Board ‘of Education, supra; cf. Mr.

Justice Frankfurter? ; coneurring opinion in Garner vy. Los

Angeles Board, supra, at 724, 725.

“OF course, a state may ‘take appropriate measures to

screen teachers to determine their trustworthiness, relia-

vility, fitness atnd suitability for training the young.

See Beilan v. Bourd of Education, supra; Adler v. Board

of Education, supra; and Lerner v. Casey, supra; Garner y,

Los Angeles Board of Public Works, supra. - Here, how-

ever, no relationship between the unqualified disclosures

required and appropriate inquiries concerning fitness

- and suitability has been shown: Cf. Garner v. Los ‘Angeles

Board of Public Works, supra; Adler v; Board of Educa-

tion, supra; “Lerner vy. Casey, supra; Beilan vy. ‘Board

of Education, supra. Nor has any relationship been démon-

“strated between the statute’s stated purposes—administra-

‘tion, financing and benefiting the schools—and the restric-

tion ow First and Fourteenth Amendment rights which

Act 10 effects. See N. A. A.C. P. v. Alabama, supra; Bates

Vv. Liitle Rock. 361 U. S. 516.

The rationale of the court below and of. the Supreme

Court of Arkansas in Carr vy. Young, — Ark. — 8. W. —

(No. 83, pending here) in upholding Act 10 seems to be

. that because some associational relationships nay be rele

vant to the issue of teachér fitness, the teacher may he

(oprived of all rights of freedom of association, But that

approach cannot be applied here, While freedom of asso-:

elation and aeademic freedom are sub} ct to regulation, they |

lay, be limited by only the narrowest restriction necessary

lomeet the specific evil of state concern... See Cantuel’ ve

12

Connecticut, 310 U.S. 296, S07; Thernhal vo Alabama, 310

U.S. 88, 105. |

The decisions of this,Court recognize the publie’s vital

interest in the maintenance of the freedom. of speech and

association of the feachet because of the important role

the teacher" plays in extending the frontiers of knowledge,”

in helping the young develop a capacity for critical and

independent thought, and a discipline of inquiry, open-

mindednéss and adventurousness. These are essential

characteristics of the American personality if our dento-

cratic institutions are to survive. See Wieman v. Upde-

graff, supra; Sweezyv. New Hampshire, supra. The effect

of this statute is to render public school teachers spiritless

and afraid, fearful of all associations and participation in

any activity which school authorities might possibly regard

as inappropriate. Thus, intellectual curiosity will be dis-

couraged,.and in the classroom only athe ‘safe’? ideas are

-rtain to obtain a hearing.

The tact that the statute carries no explicit penalty is

- unimportant. In Arkansas, teachers must sign new con-

tracts for each forthcoming school year. They are, there-

fore, utider the pressure of constant surveillance as to their

associations, their ideas, their beliefs and relationships.

They know and understand that they must carefully avoid

all questionable and unp*rular causes which might. be

frowned upon by their superiors. Appellants submit that

Act 10 constitutes a ernde attempt to legislate uniformity’

in the classroom, «As such, it threatens fundamental free-

doms ‘protected against governiaestal intrustien in our

society and must not prevail. | ,

«

13

ARGUMENT

I.

Act 10 Destroys Academic Freedom and Deprives

the Public School Teacher of Freedom of Association

Academie freedom is unquestionably one of the great

areas of pérsonal liberty preserved from governmental

restriction by the First and Fourteenth Amendments to the

Constitution of the United. States. Wieman v. Updegraff,

344 UL S. 183; Sweeey v. New Hampshire, 354 U.S. 234;

and se Adler v. Board of Education, 342 U.S. 485; Berlan

‘Vv. Board of Education, 357 U.S. 399; Lerner y. ( ‘asey, 357

U.S. 468; Slochower v. Board of Education, 350 U. S. 551.

Its preservation is “deemed - fundamental to our society,

See Wireman vy, Upedoraff, supra; Sweezy v. New Hamp.

shire, supra, .

Obviously, the teacher's right of freedom of association:

and privaey outside the classroom are not on'y aspects of

his personal freedom, but essential if acadenue freedos

isto prevail. Fer if the teacher is to act as a conduit of the

htiewledoe of the past and a bridge to the extersions of

Knowleadee in the future, he aust. he free of restraints,

inhibitions and fears which enrh dependont fheught.

thas Aet.10, in rv strieting the teacher's right of freedom

“OF assueiation, IMpInges not nivkely Upon the teacher's

Privaey ane liberty as an individual, but affects soclety's

terest in the full dev ‘lopment of the minds of he young,

A claim, thorefere, that a state mr siviets a teacher's rieht

‘ Treedom of association poses a question of serious eon-

Sitntional Import. See Wieman v. lpdegraff, supra;

weesg \. New Hampshire, Supra,

Although the state's interest in maintaining the litegrity

*% the publie schools may warrant the promulgation of

.

~. regulations designed. to insuré the character, fitriess, trust-

worthiness. suitability, professional competence and loyalty:

of the teacher in public institutions of learning, see Garner

y. Los Angeles Board of Publi Works, 341 U.S. 716;

Adler v. Board of Education, supra; Beilan vy. Board of

Education, supra; Lerner v. Casey, supra, it does not follow

that academic freedom can, thereby “be destroyed or that

the teacher can be deprived. of all of his constitutional -

rights of freedom of association as a condition .of public. -

employment. See Wieman v. Updegraff, supra; Beilan v.

Board of Education, supra; cf. Mr. Justice Frankfurter con-

curring in Garner v. Los Angeles Board of Public Works,

supra at 724, 725; Sweezy v. New Hampshire, supra.

This Court has sustained state inquiries into past and

present membership in the Communist Party as appropri-

ate to u determination of fitness and suitability for public

employment Garner v. Los Angeles Board of Public Works,

supra; Adler v. Board of Education, supra. Dismissal, °

based upon a refusal to answer questions concerning me:

bership in subversive organizations, was sustained as rele-

vant to a determination that such refusal evidenced @

lack of candor and unt rustworthiness inappropriate to one in

the teaching profession. Beilanv. Board of Education, supra.

Yet, a blanket restriction barring from public employment

any teacher who had been a member of the Communist

Party, Wireman v, Updegraff, supra, and the forced «is-

closure of the political affiliation of the teacher or the con-

tents of a classroom lecture, Sweezy v. New Hampshire,

supra, were invalidated. . :

The yardstick which is used to measure the propriety of

state action affecting freedom of association is whether the

state’s regulation ean be justified as needed to nratect dime

socictal interest of compelling impo-tance. N.A. ACP. ¥-

Alabama, 357 U. S. 449. Where such a showing has heen

made, the restriction will be permitted. if the proscription

are set out in a statute narrowly drawn to meet the sup-

posed evil, See Cantwell v, Connecticut, 310 U.S. 296, 307;

15

Thornhill v. Alabama, 310 U.S! 88 105; Poulous v. New

Hampshire, B45, S. 399,°404, 405: Sai v. New York, 334

U.S. 508, 560: ¢f, Thomas v. Collins, 323 U.S. 516, 530;

Rath v. United States/ 354 U.S. 476, 488, provided there

isa relevant connection between, the curtailment effected

and che valid objective the statute’ seeks to attain. Cf.

MAAOOP. ¥. Alabama, supra; Bates v. Ltitleé Rock. 36]

COS. 516; Butler , 2 Michigan, 302 U.S. 380, 383: Smith v.

California, 361 ULS.147. In Garner ayjl Beilan, the state’s

acts ueetsured against this yardstickSvere upheld, but in

Wiemean and Sweezy the restrictions were struck down as

in excess of the state's power. .

[ere again the Court is faced with the basic problem

with which it vas confrontéd in those cases. Individnal

rights of free” ™ of association and the public interest in

the maintenance of the free flow of knowledge in’ the class-

room must be weighed against the state interest in protect-

ing the integrity of its school system. |

But, appellants submit, this case poses little of the

difficulty or subtlety with which the Court in Garner and

Beilan had to coneern itself. Here Act 10 effects a sweep-

ing curtailment of the liberty. of the public school teacher

and drastically interferes with. academic freedom. Assum-

ing that the statute may be read without regard to the fact

that it was enacted at the 2nd Extraordinary Session to

inipede implemeutation of the . constitutional : rights of —

Nt -o children to'a publi¢ educat’>n free of discrimination

‘see infra), the statute 's objectives, vaporous and amor-

phous as stated, are to provide ‘‘assistance in the adminis-

tration and financing’? and to benefit the public schools

(See ©1, ante). No mention js made of: teacher fitness,

‘uitability or trustworthiness. ° ither by its terms, nor

48 ecnstrued, is Act 10 limited’ ly to disclosures rele-

vant to that determination. ; -

While freedom of association and academic f reedom are

lot absolutes, the Court,-in determining the validiiy of a

sovernmental deterrent affecting those freedoms, must

16

reach decision pursuant to a formula which accords: the

‘‘widest scope of freedom . . . to the adventurous and

imaginative. exercise of i human spirit.’ Mr. Justice

Frankfurter, conearring in Ningsley Carp. v. . Regents of

the U niversity of New York, 360'U. S. 684, 694, 695.

+

As Mr. Justice Brennan gaid in n Roth v. Unite “ad State 8,

'supra at page 488:

... The door barring federal and state intrusion

into this area [of freedom of spe ech and assogiation]

¢annot be left ajar; it must be tightly, closed and

opened only the slightest crack necessary to prevent

encroachment upon more important interests.

This statute. does complete violence to that principle. . It

infringes freedém of association’ and curbs. academic free-

. dom to a far greater degree than is essential to secure what-

ever countervailing legitimate state interest may be in-

volved. See Butler v. M ichigan, supra; Smith +. California,

supra. As such, the statute is unconstitutional on its face.

See Cantwell v. Connecticut, supra; Carlson vy. California,

310 U. S. 106; Lowell v. Griffin, 303 U. S. 404, 451; Wilk

Wagon Drivers Union v. Meadowmoor, 312 U.S. 287, 297;

Staud v. Bazley, 355 U. 8. 313, 321.

Moreover, there¢is no showing that curtailment of

teacher freedom and privacy will in any way aid in admin-

istrating, financing or benefiting the schools. Indeed, thé

result most likely to. flow from enforcement of the statute

is stultification, stodginess and repression in the classroom.

What Mr. Justice Douglas said in Adler v."Board of Edw

cation, supra at pp. 598%, 509, 310 in dissent bears repeat-

ing here: ~ 4

... Fearing condemnation {the teacher] will tend

to shrink from any association that stirs controversy.

In that manner freedom of expression will be stifled.

"iar ear

. Supineness and ‘dogmatism take the place, of

inquiry y. A ‘party line’—as dangerous as the ‘party

17

line’ of the Communists—lays hold. It is the ‘party

line’ of the orthodox view, of conventional thought,

of the accepted*approach.. A problem ean no longer

be pursued with impunity to_its edges. Fear stalks

the classroom. The teacher is no longer a stimulant

to adventurous thinking, she becomes instead a

Pipeline for safe and sound information. A deaden-

ing dogma, takes the place of free inquiry, Instrue-

tion tends to become sterile, pursuit of knowledge

is discouraged, discussion often leaves off where it

should begin. ~*~ |

This, in-suni, sets forth the basie reasons why the instant

statute is at war with First and Fourteenth Amendment

suarantees of personal freedom. .

The fact that the statute merely reqnires the organiza-

tional relationship to be disclosed without? necessitating the

discontinuanee of employment’ therefor does not save it

from condemnation. The deterrent effect is the same. The

pressures on the teacher to conform, to play it safe, and

hot to exercise his cuustitutional rights of freedom of asso-

cation will be as intense, as if. the Statute provided a spe-

‘ difie penalty for deviations from. the norm. His job is

still very much at stake. and his freedom greatly cireum-

serihed. See N.A.A.C_P. v. dlabama, supra. 'The teacher

Will fear and shun.all cor troversial activities. He will fear,

in fact, to- engage in any. activity, however lawfiil, which is

believed to be objectionable to school ‘authorities. ‘The

infringements on freedom which Act 10 effects endanger

the basie structure of our society, and, it is respectfully

‘ubmitted, the sta‘ute must fall.

oa Td,

Act 10 Is Desigred to Prevent Exposure In the

Classroom to Any Views At Variance With the State’s

Policy in the Field of Race Relations. :

As has been stated, Act 10 was enacted at the 2nd Extra-

ordinary Session of the General Assembly of Arkansas in

1958. The purpose of this legislative session was tu devise

. | 18°

. \1

’ . . }

e e }

ways to avoid and impede the implementation of this Court’s

decision in The School Segregation Cases (R. 91-101). All

legislation proposed. and ‘adopted at this. session was aimed

at the continued presérvé ation of segregation in the statée's

school system {R. 99-100). Act 10 was a part of the package

\ ‘ef legislation adopted and, as is clear on its face, its objec: ’

* “tive was te assist in. the accomplishment .of. the. overall

. purpase which the other legislation sought to serve.

Act 10 unquestionably and openly seeks to achieve an

enforced conformity on the issue af school desegregation

‘in all publie institutions of learniue. Obviowisky, member-

ship in-the NLALALC.P. or support ; fits Views is not ravored

“by state authorities (R. 95-99). This official attitude, im-

plicit im Act 10,-became unmistakably clear with the enact-

ment of Act 1M. w hich rendered membership in the

NAACP a basis we disqualification for public employ-

_ments :

A ees

’

The-striking down of Act 115, appellants respectfully

submit, without’ at the same time striking down Act 10,

does not remedy the evil which Act 115. sought to aecom-

plish. Sehool authorities may now achieve through the

‘ indirect means which Act 10 affords all that was held be-

yond the state’s reach in Act 115. Few teachers, who

desire to remain in the school system, will become or remain

mémbers or contributors of the N.A.A.C.P., as long as their

connection with that organization must, be disclosed to

school authorities as a condition of continued employment.

“Thus, the right of association in the N.A.A.C.P. to engage

in lawful activity to improve the’ Negro’s status, upheld

against state interference in NALLCW. v. Alabama, supra;

and Bates v. Little Rock, supra, is now denied to teachers

in public institutions. in Arkansas. :

Moreover, «Act 10 effectively bars membership in any

organization favoring desegregation or opposéd to the

state’s racial policies. lw epriving the teacher of rights

of freedom of, associ iation in respect to dissideyt organiza-

tional ac “IV ity ‘in the field of ryce relations, Act 10 prevents

/

Ianotp B. ANDERSON,

Groce Howarp, Jr.,

.

= ‘ : . 19 ; : ° ; e

exumination and diseussion of the merits -of concepts of

racial. equality nud the fallaev of Ngee of white ~u-

promaey.. As injurious as Act 10 iM} stifling discussion

on these isstes, its harm is far more extensive and per-

nicious. Today, conformity to the view that racial segre-

sition piust prevail is the present objective of the law,

but the statute can be use! with equal effectiveness to stifle

sry dissident ideas or the diseassion of any unorthod6x

View in the classroom.

To paraphrase Mr. Justice Douglas—so long as the

teacher meets appropriate standards of trustworthiness,

suitability and fitness, his private life, political philoso-

phies and social creed should be free from scrutiny of the

state, Sinee the state has demonstrated no justifiable basis

tor its sweeping curtailment of the fundamental constitu.

tional rights here involved, appellants respectfully submit,

Act 19 must be struck down.

CONCLUSION. s

<a for the reasons hereinabove stated, the.

judgment of the court below should be reversed.

Respectfully submitted, ©

’ Ropert L. CARTER,

20 West 40th Street,

New York, New York.

Trap D. Wiliams,

80014 West-9th Street,

Little Rock, Arkansas.

| Attorneys for Appellants:

' of, Counsel.

Q

©

21

Appendix

i Aa 115 of 1959

An Act to Make Unlawful the hidtiinies by the State,

School District or Any County or Municipality Thereof

. of Any Member of the National Association for the

Advancement of Colored People, and to Provide

Penalties for Violations

Wuirreas, the National Association for the Advance-

_ment. of! Colored Péople has, through its program and

leaders in the State of Arkansas, disturbed the peace and

trapquility which has long existed between the White and

Negro races, and has threatened the progress and increased

understanding. between Negroes and Whites; and

WHeEreEas, the National Association for the Advancement

of’ Colored People has encouraged and agitated the mem-

bers of the Negro race in the belief that their children were

not receiving educational: opportunities equal to those -

uccorded white children, and has urged the members of

the Negro race to exert every effort to break down all °

racial barriers existing between the two races in schools,

public transportation facilities and society in general; and

Wueneas, the National Association for the Advancement

of Colored People has made a strenuous effort to imbue

the members of the Negro race with the belief that they are

the subject of economic and social strangulation which

. will forever bar Negroes from improving their standard in

life and raising their standard of me to _ enjoyed

by the White race; and

Ww HEREAS, the General Assembly believes that in view of --

the known teachings of the National Association for the

Advancement of Colored People and the constant pressure

exerted on its members contrary to the principles upon

which the economic and social life of our States rests, and

that the Nutional Association for the Advancement of

*

on .

Colered People. is so insidious m its propreanda | and the

fostering of these ideas designed to ‘produce a°con.tant

state of turmoil between the races, that membership in

such an organization is wholly meompatible with the peace, °

_ tranquility and progress that all citizens have.a right to

CHOY ; : and

Wuereas, the: Special Education Committee of the

Arkansas Legislative Council has found that the National

Association for the Advancement of Colored People is a

captive of the international communist conspiracy; Now,

THEREFORE, BE IT ENACTED BY THE GENERAL ASSEMBLY OF

THE STATE oF ARZANSAS: -

_ Section 1. It shall be unlawful for any member. of the

' National Association for the Advancement of Colored -

People to be employed by the State, school district, county

or any municipality thereof, and such prohibition against

employment by the State, school district, county or any

municipality thereof shall continue so long as membership.

‘in the National Association for the Advanceme nt of C ‘olored

People is maintained.

Section 2. The board of trustees of any public school

‘or State supported college shall be authorized to demand

of any teacher or ather employee of the school, who is

suspected of being a member of the National Association

for the Advancement of Colored People, that he submit to

the board a written -statement under oath setting forth

whether or not he is a member of the National Association

for the Advancement of Coloréd People, and the immediate

employer of any employee of the State. or of any county

or municipality thereof is similarly: authorized in the case

any employee is suspected of being a member of the National

Association for the Advancement of Colored People. Any

person refusing to submit a statement as provided herein,

shall be summarily dismissed.

Section 3, A person dismissed. from, or declared’ ineli-

gible. for, es ment under the provisions of this act, may

ba)

. Within four months’ of such dismissal or declaration of

ineligibility be entitled to petition for an order to show

cause before any cireuit. court of the State Why a hearing

or such charges should not be had. Until the final judg- -

ment on said hearing is entered, the order to show cause

shall stay the effect of dismissal or ineligibility based on

the provisions of this act. The hearing shall consist of the:

taking of testimony: in Open court with Opportunity for

cross-examination. The burden of Sustaining the validity

of an order of dismissal or declaration of ineligibility by «

a fair preponderance of the credible evidence’ Shall be

upon the person making such dismissal oredeclaration of

- ineligibility, '

— SEctTiIon 4, Any person employing any individual con-

trary to the Provisions of this act shall be Subject to a

fine of not exceeding one hundred dollars ($100.00) for

each separate offense.

SEcTion 5, All laws or parts-of laws inconsistent here-

With are hereby repealed. :

_ Section 6. It has been found and is declared by the

z

APPROVED: February 24, 1959, a