Brief for Appellees and Respondents — Shelton v. Tucker

ILE COPY ae os a

| a re __OCT 31 1960 °

; , R. BROWNING. Clerk

ee ~ SUPREME COURT OF - THE UNITED S] —

, . October Ter ii, 1960

~ Nov -l4—No. 88

i - Saree 2 Ce |

Bb. T. Suevrox, et all, - : - ' Appellants

. a ‘ ‘. No. 14

Lvexeer Tockers Jk, Presipent, evc., et al, .. Appellees -

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

. POR THE EASTERN DISTRACT: OF AKKANSAS Muah,

\iax Carr, - al., — ; Petitioners

v. ° | NN No. 88

Ro AL Youna, et al, \ : ‘Respondents oD

ON WRIT OF CERTIONARL TO THE SUPREME COURT. | Nyt

a , OF ARKANSAS |

BRIEF FOR APPELLEES AND RESPONDENTS |

LOUIS L. RAMSAY, JR. *

FE. HARLEY COX

- Simmons National Building,

Pine Bluff, Arkansas

_ HERSCHEL H. FRIDAY, JR,

. ROBERT V. LIGHT

_Boyle Building

at . * — Little Rock, Arkansas

ae Attorneys for Appellees: in No, 14

co HERSCHEL H. FRIDAY, JR.

oe ROBERT V. LIGHT |

‘Attorneysfor Respond nts in No. 83

“PARAGON PRINTING CO . LITTLE ROCK

e

s

p ; PAGE

Questions Presented — a eee 1

Statement a : Aaa 1

Summary of Argument | - ; | eer 27 ‘a

Argument: —_— . * eee

. : se * ° ,

I. The Motives ‘of the Gavernor and‘of the Le gislature

_ in Connection with the Adoption of Act 10 Haxe No

Bearing on Considerations of Constitutionality

of .the Act. . a aes

II. Act 10 is a Constitutional Exercise of Power of

the State Legislature to Provide for the ,

Administration. of the Public Schools. 7

Conclusion 0 ; ; 20

ESOC ED > tere. & «

Qo

- Bates v. Little -Rock, 361

‘Lérner v. Casey, 357 U.S. 468

a

INDEX—(Continued) |

Table of -Cases

Adler v. Board: of Education, 342 U.S. 485 ©

Atkin v. Kansas, 191 U.S.° 207°

U.S: 516

>

. Beilan v. Board of Education, 357 -U.S. 399

-

>)

Barenblatt v. United States, 360 U.S. 109 -

Carr v. Yoyng, - . Ark.

Doyle v. Continental Ins. Co., 94 US. 535

Garner v. Les Angeles Board of Public Works, 341 U.S. 716

Gerende v. Board of Supervisors of Elections, 341 U.S. 56

Hebert v. Louisiana, 272 U.S. 312

riorosko v. Mt. Pleasant Twp. School Dist., 336 Pa. 369

N.A.A.C.P. v. Alabama, 357 U.S. 449

Palko #. Connecticut, 302 U.S. 319

Shelton »v. McKinley, 124 F. Supp. 351

Shuttlesworth v. Birmingham Board of Education,

162. F. Supp. 372

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

‘Sweegy v. New Hampshire, 354 U.S. 234

. .: - . :

United Public Workers v. Mitchell, 330 U.S. 75

Wieman v.-Updegraff, 344 U.S. 183

' Miscellaneous

42 AAUP Bulletin 96(1953)

42 AAUP Bulletin 49(1956)

‘SUPREME COURT OF THE ‘UNITED STATES

October Terin, 1960

No. 14--No. 83

B. T. Suevton,-et al., pepeets soe Appellants

3, 1 Now oe

Evene rr Tucker, Jr, Presment, ete.,-f al., Appe lees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTLARN DISTRICT OF ARKANSAS)

Max Carr, ef al, . ‘9. .. Petitioners

Va. pa _ No. 83

R.A. Yousa, et als ; hale Respondents

_ ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF ARKANSAS .

BRIEF FOR APPEL L EE AND RESPONDENTS

:

QUESTIONS PRESENTED

The-questions: presented by Appellants in'No, 14 and

by Petitioners in No. 83 are substantially? identical. - _ In

eaclr the issue is drawn on ‘whether Act 10 is ciel,

tional on its facé by virtue of conflict witlr the Fourteenth

Amendment to the Constitutian of the United States. In

No. 14 the rights secured by that Amendment suggested

to. be violated by the Act are academic freedom and free-

.dom of association. In No. 83 both of these rights are

mentioned and there’ is also suggested a deprivation of

rights of apeec ‘hy. press and religion. 7

/

2

STATEMENT

The statements of appellants and petitioners are ade-

quate to acquaint the Court with the factual background

of the cases. However, we do not concede, nor does thie

competent evidence in tlie Record support, petitioners’

statements that the purpose of calling the Second Extra-

ordinary Session of the General Assembly of Arkansas

in 1958 was that ‘fof enacting anti-desegregation legis-

lation.’ * (Petiticners? Brief .6).

SUMMARY OF ARGUMENT

The motives of the Governor, Attorney General and —

members of the legislature in connection with the adop- .

tion of Act 10 are immaterial to any question before this

Court. Deyle v. Continental Ins. Co. » 94. U.S. 535; Baren-

Liatt v. United States, 360 U.S. 109.

The relevance of the information required by Act 10 |

to the determination of teacher fitness, suit«bility or

trustworthiness is the point upor which issue is joined in

this ease. . Both ‘Congress*and the legislatures of the

States hav? a- -broad power to impose. conditions upon

public employment. United Public Workers v. Mitchell,

330 U.S. 75; Garner vy. Board of Public Works, 341 US.

716. Relevance to fitness and suitability for the. posi-

tion held or sought -marks the limits prescribed by this

Court ef the public employer’ 8 inquiry into the other-

wise private affairs of its employees. Gerende v. Board_

of Supervi isors of Elections, 341 U.S. 56; Garner v. Board

of Public Works, supra.

‘The snail dutiei and responsibititic es. of a teacher

make relevant a broader area of- inquiry by the public

employer than is the case with less sensitive avoc ations.

Pp

:

Adler v. Board of Education, 342 U.S. 485. Act 10, un-

_like the mandates in Garner arid Adler, is not a eisquali-

fying enactment and requires information relevant to

promotion and re: issignment decisions as well» decisions

on the fitness of an imdividual to teach at all.

Wieman v. Updegraff, 344 U.S. 183, and Sweee y v.

New Hampshire, 304 US. 234, do not restrict the power

of the State exercised by the adoption of Act 10, and

". there is no ‘dispute in this case about the concept of con-

stitutional. protection for acedemic freedom as it was

treated in those decisions. It is also clear that Slochower

v. Board of Education, 350 U S.001, prescribes’ no inhibi-.

tions against relevant inquiry by the public employer,

' 2)

° ‘O

There is .no constitutional requirement. that <a.

teacher’s classroom conduct be the sole basis for deterin-

ing his fitness, A’ broad range of factors. including

conduct away from the school house, is rele ‘ant ino mak- -

ing this determination. Beilan vy. Board of Education,

SOT U SS. 399,

f

“Any employee, public.or private, owes the fundamen-

tal duty of candor and frankness to ‘his employer with

regard to his fitness for the position held or Sought{and

this is CSpec ‘ially true tin the vase of a public school

teacher, Beilan v: Board of Education. supra; Lerner

CS eden

*. Casey, ar) U.S, 468.) This obligation js recownrzed hy

professional. organizations of teachers as: well as. the.

courts. 42 ALACULP. 49 » 6, A legislative requirement

tht the obligation be dise harged iS hag inconsistent with

the concept of. due process as defined ix this Court

Hebert y, Lowstana, 272 U.S, 312: Palke Ve Counc tient

APA S, 319.

Qa

s°

4

NAACP ._*%. Alabama, 357 U.S. 449, and Bates y

Little Rock, 361 U.S. 516, hold only that the information

there sought Was not relevant to the asserted gov ernmen-

tal purpose in@lved and thus are clearly distinguishable

from the,cases at bar. © The contention that the purpose

of Act 10 is- purely one of exposure raises 10 material

issue cognizable to this Court. Barenblatt v. United

States, supra. Argument that Act 10 is capable of being

unconstitutionally applied is, at best, premature in these

proceedings. Nor can Act 115, adopted at a “subsequent

session of the legislature and four months theréafter de-

clared unconstitutional by a court of competent jurisdic-

tion, affect.in‘any way the validity of Act 10 because Act

115 was wholly unrelated to Act 10 and is no longer in

existence. " |

The questions of the: wisdom or necessity: of: Aet 10

are not properly addressed to this Court. “Lerner v.

Casey, supra; United Public Workers vy. Mitchell, supra;

Atkin v. Kansas, 191 U. S. 207.

i

The Act is aa on its oa

ARGUMENT

I . «

THE MOTIVES OF THE GOVERNOR AND OF |

THE LEGISLATURE IN CONNECTION WITIT

THE ‘ADOPTION OF ACT 10 HAVE NO. BEAR-

ING ON CONSIDERATIONS OF CON-

STITUTIONALITY OF THE ACT

Tn an effort to condenth the Act in question with the

“euilt by association’’ device, appellants and respond-—

ents have filled the Records in these cases with materials

which could have no: purpose. but to make a purported

demonstration of the motives or intentions of the Gov-

ernor and the Legislature in their respective activities

connected with the adoption of tne Act. The- address

of the Governor to the General Assembly was introduced,

over defense objections, in both eases. (No..14 PL Es.

1; R55, 91—No. 83 PL Ex.5; R97, 114). The State

Senator who introduced the bill was questioned as to its

_ purpose (No. 8. ; ‘R.104) as was the State Attorney Gen-

_ tral whose office had performed some of the work in.

‘drafting it.’ (No. 88; R83). < Petitioners pursue this

inguiry into motives in the argument contained in thedy

Brief asserting that the Act was adopted s*by the Ar-

* kansas Legislature to achieve the overcdl purpose of

ioncomplianee with the decision in Brown ve Roard of

' Education, 347 U.S. 483.7" The same assertion ist iiade

le appellants in their Brief where, it-is said that "Phe

obvious aim of, the statute under contest here was to at.

tempt to close off the classrooin from sentiment faver-

ing sv hoo! desegregation or opposition to the State’. do

@ . ° . ‘ ° . a . . . . . *

ston to defy the Constitution of the United) States,

b

‘Itzhas lone been settled that in testing the constitu:

tionality of an Act the courts cannot search for motive or

intention. “Tf the Act done by the State is legal, is-not

‘in violation of the Constitution or laws of the United

States, it is «juite out of the power of any court to inquire

what was the intention of those who enacted the law.”

Doyle v. Contmental Ins. Co., 94 U.S. 585. The futility

of such an inquiry was pointed out in Shuttlesworth v.

Birmingham Board of Education, 162 F. Supp. 372, af-

firmed 358 U.S. 101, where it was said that motives varv-

from one individual member of the Legislature to another,

and that ‘*As there is no one corporate mind of the legis-

lature, there is in reality no single motive.’ |

The principle has been reaffirmed by this Court as

-recently as Barenblatt v. United States, 360 U.S. 109, 182,

in the following language:

“So jong as Congress acts in pursannce of its

constitutional power, the Judiciarv lacks authorify

to intervene on the basis of the motives which

spurred the exereise of that.wower, — Arizond vy.

California, 283 US. 423, 455, 75 Le eds 1154, 1165,

57 S. Ct. 522, and cases there cited. ‘It: is, of |

course, true,’ as was said in MeCran, ve. Cuited

States, 195 U.S. 27, 49 L. ed. 78, 24.8. Ct. 769, 1,

Ann Cas 561, ‘that if there be no authority in the

judiciary to restrain a lawful exercise of power

by another department of the government, where

a wrong motive or purpose has impelled to the

exertion of the power,. that aigises of a power con-

e” ferred may be teinporarily effectual: The remedy.

for ‘this, however, lies, not in the abuse by the_ju-

dicial authority of its functions, but in the people,

upon whom, after all, under our institutions, ‘re-

liante must be placed for the correction of abuses

- committed.in the exercise of. a lawful power.’ "

; 7

The irrelevance of the motives of the Governor, At-

torney General and the members of the General Assembly

to the questions before the Court appears to be so clearfy

settled by the prior decisions of. this Court that we do not

here attempt to answer or refute the, factual assertions

and arguments adv anced in this area. by appellants and

petitioners. Our decision to so treat the matter. is

prompted solely by the deSire to avoid undue extension

of this brief discussing irrelevent matters. — Certainly

we entertain no apprehension that if the matters were

relevant, and if a full and ‘proper judicial inquiry were

‘lirected tocthem, the motives of all-of these officers

prompting their official’ acts’ would be consistent) with

the oaths taken by each to uphold ‘the Constitution of the

Vnited States. As pointed out in Shuttlesworth v. Bir-

nugham Board of Education, supra, public officials are

vutitled to this presumption.

II

ACT 10 IS A CONSTITUTIONAL EXERCISE OF

POWER OF THE STATE LEGISLATURE TO

PROVIDE FOR THE ADMINISTRATION OF

THE. PUBLIC SCHOOLS

The Act in) question rednires that as a condition

precedent to employment in the public se hools teachers

‘and supervisory personnel shall file with the apprepri-

we governing hoard an affidavit listing the associations

ind organizations to which they are or within the - past

rive years have been me mbers, and those to which they

:or during the’ same period have heen, making rewular

; coda or “aving dues, Furnishing the informi-

tion only is required. | There is ne sanction contafned

n tlhe Act that. if membership in the Communist Party,

oc any other Harned organization, ix thus reve aled dist

e

missal and disqualification must follow. ~The Aet, of

~ course, provides a corollary duty to the furnishing of

the information-—it requires the governing board to ob-

tain. the information prior to entering into employment

¢ ontracts.

It is charged that these’ requirements prescribed by

the State in. connection with the operation ‘and: adminis-

tration of its public schools are unconstitutional on their

- face. Ht-is not argued that the’ five-year retrospective

effect of the Act contributes to the alleged invalidity.

. Indeed such a five-year, period of inquiry into past activ-

ity: by municipal employers was specifieally approved

by this Court in Garner v. Board of Public Works, 341

US. 716, The principal contention of both appellants.

und petitioners (aside from: the matter of motives) is

that the information required by the Act is not’ relevant

to a determination. of teacher fitness, suitability or trust-

. worthiness. It is cn this contention that issue can. be

joined. « | i _

While no one would contend that entry upon. public

employinent constitutes an abdication of ail constitutional

‘rights, it is equally clear that there is necessarily a broad

permissible area of legislative regulation with respect to

employees who are paid“from the public treasury. Tlius

it was held that. there was no constitutional objection to

‘a prohibition by Congress of partisan political activity

on the part classified-federal employees. United Public

Workers v. Mitchell, 330 U.S. 75. It was pointed out in

Garner v. Board of Public Works, supra, that the power

of a state is not less than that of Congress in this field.

It was held that.a state law ‘requiring candidates. for

municipal office to file an affidavit disavowing activity

directed toward overthrow of the government bv foree |

or violence, or knowing membership in an organization

.. q

.

vate affairs of its employe CeS,

hte, 9

envaged in such an attempt, was valid in Gerende v-

Board of Supervisors of Elections, 341 U.S. 56 -° An

ordinance of the City of Los Angeles. requiring of its em-

ployees, as a condition to continued employment, an

ith denying advocacy of overthrow of the ‘government

‘by, unlawful means and an affidavit disclosing present-or

past membership in the Communist: Party was sustained

against a broad constitut’onal attack in Garner v.\ Board

of Public Works, supra. © While. this is not the most re-

. cent treatment by this Court of questions ‘similar to those

presented by the easés at bar, it does furnish a clear d.--

inition of the permissible area of inquiry ‘of public em-

ployers. It is said:

‘*We think that a municipal emplover is not,

. disabled because it’is an agency of the State from

inquiring of, its employees as to matters that may

prove relevant to their. fitness and suitability for

the publie service. Past conduct mav -well relate

to present fitness: past lovalty may have a rea:

_ sonable’ relationship to present and future trust.

Both are cominonly Jinguired inte in determining

fitness for both high and low positions in nrivate

industry and are noi less‘ relevant in public em

ployment. The affidavit: requirement is valid.”

Thus relevance to fitness and suitability for the position

lield oF sought marks the limits jrescribed by this Court

of the publie employer’ 8. inquiry into the: otherwise pri-

>

In the Garner case “inquiry” inte advocacy v of over.

ihrow of the government by unlawful means and member-

ship in the Communist Party was regarded to be relevant

to the question. of fitness or: suitability to hold any posi-

tion of municipal employment -in the Cite of Los Angeles

There is na attempted” distinctio® hetween its applieabi-*

‘ty to the street cleaners and to the Mayor. In Adler vy.

1U

Board of Education, 342 U.S. 485, a more jromogencous

group of public employees was affected. There a state

law: providing for the disqualification ‘and removal of

public school teachers who advocate the overthrow of the

government by unlawful méans or’ who belong to organi-

vations which have like purposes was held valid. The .

Court specifically rejected the suggestion that the de-

cision in the Garner case should not be followed, and an-

nounced adherence to’ that case. In language squarely

applicable to the cases at bar, the Court describes those

aspects: of thé teaching profession which, make relevant

inquiry of its members that perhaps, would not be so when

dire¢ted to public employees charged with a less critical

- responsibility :

“A teacher works in a sensitiye area in a

school room, There he pes the attitude of

young minds towards the society in) which they

live. In-this, the state has a vital concern. It

must preserve the integrity of the schools. — That

the school authorities have the right and the duty

to screen the officials, teachers, and employees as

to their fitness to maintain the integrity. of the

schools as a part of ordered - society, cannot be

doupted. —One’s associates, past and present, as

well us one’s conduct, may. properly be considered

ii determining fitness and loyalty. From time

immemorial, one’s reputation has been determined

in.part by the company he keeps. In the employ-

nient of officials and teachers of the school sys-

~. tem, ue state may very properly inquire into the

-company they keep, and we know of no rule, ¢con-

stitutional or otherwise, that prevents the’ state.

when determining the fitness and loyalty of such

“persons, from considering the organizations and

persons with. whoni they-asseeiate.”” - .

The foregoing. language of this Court goes straight

to the heart of the question of the relevance of the in-

formation required by Act 10 to the suitability or fit

ll

ess of teachers for their positions. The public board

charged with administering the sehgols is entitled, in fact

is duty bound, to maintain for the school system both in--

tegrity and publié: respect. This it must do through an

exervise of judgment which approaches soundness at a

pace in direct ratio to the extent that it is enlightened by

the facts voncerning the individuals under. consideration.

It should be remembered that unlike the ordinance |

in Garner and thé statute in Adle ‘r, Act 10 is not-a dis-

qualifying, enactment. It does not provide for the re-

moval of anyone from any position. The information

required by it is available equally to judge the fitness of

“ mployees for different assignments and promotions as

‘it is to judge their fitness: to teach at all. The interests,

civie activities and perhaps specialized knowledge which

membership in various organizations would’ tend to re-

veal are of no ‘less interest to school authorities in de-

termining which teacher is best prepared for advancement ;

(ya principal’s position than is. similar information to a

private employer making a decision with regard to pro-

méting one of his subordinates.- Revelation of member-

ship by the physical education instructor in historitai:

societies could lead to better use of. his talents and ‘in-

lerests, and membership by the teacher of practical medi-

cine for future homemakers in the Church of Christ

Scientist might properly lead the governing board to

wake a teaching. assignment for which it: felt. tlie teatcner

Was letter fitted. ;

om ‘Adle vr’ this Court decided Wieman vy. U ‘pde-

graft, 344 U.S. 188, invalidating an Oklahoma statute re-

juiring a loyalty oath of all state-officers and employees

to the affeet that they had not been members of any or-—

fanization on the **Attorney General's List”’ within the

five preceding years. The basis of conflict of this stat-

12

ute with the Fourteenth Amendment was that it created

a conclusive presumption of. disloyalty based on member-

ship ‘alone without regard to the knowledge of the per-

‘son at the time of membership of the nature ‘and purpose

of the organization. This statute, like Garner and Adler

but unlike Act 10, was-a disquilifying enactment effect:

‘ing the removal of public employees who would not, or

could not, take the oath it ‘prescribed. ,

Wieman is cited by appellants and. petitioners along

with Sweezy v. New Hampshire, 354 US. 234, in support

of the general proposition that academic freedonr is with-

in the protection of the Constitution. © We certainly have

no quarrel - this concept.

The attack on Act 10 can draw no suppor froin

- Slochower v. Board of. Education, 350 U.S. 551, which

held to violate due process a provision in the Charter of

the City of New York requiring discharge of any city em-

ployee who involked the privilege against self-incrimi-.

nation’ to avoid answering questions relating to his of- .

ficial cunduct. The privilege was invoked by a munici-

' pal college professor before a United States Senate Sub-

committee and was employed. to avoid giving information —

already possessed by municipal authorities. Again the

distinction can be drawn that this statute, unlike Act 10,

disqualified and required removal of the class of persons

which it reached. However the fundamental considera-

‘tion that distinguishes Slochower from the cases at bar-

is that there was no refusal there to furnish information

‘to the * public employer. The distinction is carefully

defined by Mr. Justice Clark speaking for the majority

as follows: :

“Tt is one thing for the city authorities them-

selves to inquire into Slochower’s fitness, but

quite another for his discharge to he based en-

tirely on events octurring before a federal com-

mittee whose inquiry - was announced as nat di-

rected at ‘the property, affairs, or government of

the city, or . . . official conduct of city employees’,’’

That Slochower prescribes no inhibtions against rel-

evant inquiry by the public employer is: reaffirmed in

Beilan v. Board. of Education, 357-U.S. 399. _ There this

Curt sustained dismissal ‘of a pupblic school teacher

under a Pennsylvania statute permitting such a discharge

for “‘incompetency”’. The finding of incompetency was

. predicated on the. teacher’s refusal to answer a question

of his superintendent as to his membership in the Com-

luunist Party, Listing, apparently with approval, the

various disqualifying grounds contained in the Pennsyl-

vania teacher tenure law and similar statutes of other

states, the Court Says:

ee , aa

_ “We find ho requirement in the Federal Con- .

stitution that\a teacher’s classroom conduct be the

. \ . . . ae .

sole basis for determining his fitness. Fitness

for teaching depends on a broad range of factors.’’

A classic example of activity distant from the school

‘house which was properly’ considered to justify discharge

of a publie school teacher appears in H orosko v. Mt. Pleas-

aut Twp. School Dist., 335 Pa. 369,,6 A. 24 866, and is

discussed in the Betian opinion. . In the Horosko case the |

discharge was classified under the statutory ground of

“ineompetency’? and’ was based on the teacher's after-

hours activity in her husband's beet, garden, serving as

‘ bartender and waitress, and engaging in allied activi-

ties, THe information required by Act 16 could’ well

reveal similar activities by teachers inconsistent with the

‘best interests of the school system, It does not seem

- 00 remote to Suggest that it may be well known: that

Local Chapter 262 of the United Aesthetic Society is, in

2

- sate . Id z

fact, a place engaged principally in dispensing alceholic

beverages in violation, of local laws, is frequented by pros-

titutes and is tlie site of regular brawls snd’ disorders.

Revelation of anembership in this organization might, well

lead the public employer to reassess all relevant informa-

tion as to the suitability and fitness of a teacher,

,. Appellants and: petitioners seem to. overlook — the

‘fundamental duty of frankness and candor with regard

to his fitness for the position held or sought owed by any

“~mployee, publie or private to his employer. That duty,

as it rests on a publi¢ school ‘teacher is deseribed in Beilaw

in this language:

“By engaging in teaching in the public schools.

petitioner did not give up his right to freedom’ of

» belief, speech or. association. He did, however,

undertake obligations of frankness, candor and

cooperation in answering inquiries made of him by

his employing Board examining mto his fitness to-

serve it’as a public school teacher.”

‘The failure to discharge this obligation resulted in. the

dismissal 6f a municipally employed subway conductor,

a. position considerably less demanding of responsibility-

than:that of a teacher, and the public employer’s action

was approved by this Court in Lerner v. Casey, 3857 US.

468. Lerner refused to answer 2 question put by his

employer as to his membership in the Communist Party,

and relied on the privilege against self-incrimination in

his refusal. The Court points out that the discharge

was grounded on a finding of doubtful trust and relia-

bility based on Lerner’s lack of frankness, and not on his

“,vocation of the Fifth Amendment's protection.

Recognition of the, obligations of candor resting on

members of the teaching profession has not been limited

to the courts, Congress, legislatures and public employers

1d

lone. These obligations are generally recognized - by

the professional organizations of the teachers themselves

ws indicated by the following stutemeft in 42 American

Association of University Professors Bulletin 96:

:

“AS in all acts of' dissociation, the professor

aceepts conventions which become morally binding.

Above all, he owes his colleagues in the university

complete candor and perfect integrity, precluding

any kind of clandestine or conspiratorial activi.

ties. He owes equal candor to the publie, If he

is called upon to answer for his convictions it js

his duty as a eitizen to speak ont. Tt is‘even more -

definitely his duty as-a professor. Refusal ‘to do

80, on whatever legal grounds, éannot fail to. re-

fleet upon a profession that claims for itself the

fullest freedom to speak and the maximum p' o-

tection of that freedum vavailable in) our ‘society,

In this respect, invocation of the Fifth Amendment

places upon a professor a heavy burden of proof

of his fitness to hold a teaching position and lays

upon his university an obligation to reexamine his

qualifications for membership in its society,

' 2.» When thé powers of legislative inquiry

ure abused, tlie remedy does not lie in noncoopera-

tion or defiance; jt 48, to be ‘songht through the

normal channels of informed public opinion.’’

This statement of position of the A.A.U.P. was adopted

n 1953 and is quoted in the dissenting opinion in Sloc-

lower, & later statement appearing at 42 AATUP.

Bull. 49 (1956) reaffirms the position that lack of candor

's relevant to fitness as a teacher in this language:

.“*The fact that a faculty member has .refused

: to disclose information to his own institution is

relevant to the question of fitness to teach, but

not decisive, ° . os Nevertheless, nicmbers of the

teaching profession should recognize that sincerity

canyot be judged objectively and that a callege

/

/

tts . 16

or university is entitled to know the” facts with”

whieh it mast deal. This is especially true when a

faculty member's activities, whether or not they

‘are blameworthy, have resulted in publicity Irurt-

ful to his institution, © Accordingly, i ‘YY proper

inquiry by his institution, it is the duty of a faculty

member to disclose facts concerning himself that

are of legitimate concert to the institution, namely,

those that relate to his fitness.as a-teacher .. .”’

~The disclosure required by Act 10 is attacked as in-

pinging upom the rights. seenred — by the Cue process

clause of the Fourteenth Amendinent. Against the back-

cround of the almost universally recognized duty of the

public school teacher of candor and frankness to his in- |

_stitution’s governing board can this requirement: of dis-

closure be classifiéd as inconsistent ‘with the fundamen-

ta’ principals ‘of liberty: and justice which lie at the base

of all our civil and political institutions’? as the scope

o¥ due process was defined in Hebert vy. Louisiana, 2

U.S. 312, 316, or as ‘a practice ‘repuguant to the con-—

seience of mankind’? as* that language was employed in

Palko vy. Connecticut, 302 U.S. 219, 3232 We subniit that

it cannot.

National” Agso. for Advancement af Colored People:

v. Alabama, 357 U.S. 449, does not limit the power of a

state to aequire information relevant to a legitimate gov-

ernmental purpose. © The holding there was merely to

the effect that the: membership lists which the Alabama

Circuit Court ordered to be produced were not relevant

.o the issue then before that Court regarding whether

the N.A.A.C.P.’s activities in Alabama had been such as

to bring it within the scope of that State’s: foreign Cor:

poration registration. statute. Bates v. Little Rock, 361

US. 516, turned on the same distinction. Tt was ‘there,

held: that there was ‘no relevant correlation between the

power of the municipalities to impose occupation license

i

taxes and the compulsory disclosure and publication of

membership lists of the local branches of the National -

Association for the Advnacement ‘of Colored People.’ Jy

order for these two cuses to govern the disposition of the

oues at bar it would be necessary for the Court to hold

that the information required by~Act 10 is wholly ir-

relevant to the proper administration of the publie school

system and the determination of fitness and suitability

‘of teachers. Such a holding would be contrary not only

to logie but also to the teachings of ‘this Court in Adler

and Beilan. Indeed, the relevance of the. required in-

‘formation is 86 clear that the Supreme Court of Arkan-

‘as commented that “It cannot be doubted that the in-

formation .would often be of real Value to the employing

school board.’? (Carr v. ¥ oung, i.

N.W.'2d 701) and the three-judge District Court held that

“We think that the information required by Act 10 is

relevant:’> (Shelton vy. McKinley, 174 F. Supp. 351.)

The real objection to Act 10-that underlies the ar-

guments of both appellants and. petitioner's is’ the conten-

tion that its purpose i8 to expose membership in unpop-

ular organizations. It has already been pointed out as.

4 general proposition that the courts are without power |

'o search for mofives which prompted legislation, and

Burenbiatt vy. United States, 360 U.S. 109, comes directly

{6 grips with the specific matter of.‘‘exposure” as a legis-

lative purpose. There the Court. held that it was im-

material that the objective of the Congress and of its

Committee in conducting an investigation might ‘have

been "purely one - of exposure, It was again pointed out

that so long as the legislative branch acts in pursuance

of its constitutional power, the judiciary lacks authorit@)

‘0 intevene on the basis of the dnotives which spurred ©

the exercise of that power.

a”)

Is

Petitioners argue that the possibility that the in.

lormation contained ‘in the affidavits will) not be. kept

confidential makes Act 10 unconstitutional. This is .

shuply an arguinent that the statute could te put to an

unconstitutional use, There are few statutes. which

cannot be administered in an improper aeanner. The

remedy: for that is to attack the objectionable acininistra-

tion if and when it oceurs. +The SApretie Court of Ar-

kansas, in construing the statute held that ‘*the permis-

sible purposé of the statute is to enlighten the schol

board alone’? and ‘that the affidavits need not be opened —

to ‘publie inspection’. Carr vy. Young, supra. Since

* the statute does not provide for public inspection of the

affidavits, and since, as said by’ the Supreme Court :of

Arkansas,. ‘*. . . the proof does not show any inclination

on the part.of aily school }oard to use Act 10 ina discrim-

‘inatory manner’, there is no proper occasion to specn-

date at this il Resi regard to possébilities of future

~ abuses of the statute. | |

The suggestion by appellants that Act 115 of the

Acts of Arkansas of 1959, adopted in February, 1959, and

held unconstitutional by the court’ below in No, 14° in -

June, 1959, should in some way affect the constitutional-

ity of Act 10 which was enacted at an. entirely different

session of the General Assembly in September, 1958, does

uot merit extensive rebuttal. It is unnecessary -to con-

sider the question of whether these two wholly unrélated

Acts while concurrently 1 f ve would achieve an an

Constitutional end. This question became moot when

the District Court adjudged Act 115 to be invalid and

unenforceable and no appeal was taken from that judg-

ment. If Act 10 incurred a constitutional taint upon the

advent of Act 115, it was removed by the e1 radication of

Act 115. ’

- We have not arguéd here the wisdom or thegneces-

sity of Act 10 because those questions are clearly p.

19

* *.

.

yond

the competence of the courts to review, Lerner vy. ( ‘asey,

supra; United Public Workers y, - Mitchell, supra, In

_ the proper exercise of the judicial ‘function, the courts

must always abstain from Passing on such questions as -

did the Court in Atkins vy, Kansas, 19] U.S. 207, when,

‘peaking through the earlier Mr. Justice Harlan, ic saig:

e

‘

‘Sa, also, if it be said tha statute like the

one before us is misehievous in its tendencies, the

auswer is that the Tesponsibility therefor -rests

upon legislators, not upon the courts. No evils

arising ° from such legislation could be more far-

reaching than those that might come toeour System .

of

government if the Judiciary, abandoning the

sphere assigned io it by ‘the fundamental law,

should enter the domain of legislation, and, upon

grounds merely of justice or reason or wisdom, -

annul statutes that -had received the sanction of -

the people's representatives,’’ .

ie MACRUBEON -

7 Wheretore, for the reaspns hereinabove stated, the

judgments of the District Court in No. 14 and of- the Sp

preme Court of Arkansas in| No. 83 shor ud be affirmed. |

HicopectYally submitted, .

se |

LOUIS L. RAMSAY, JR.

E. HARLEY COX

Simmons National Building

Pine Bluff, Arkansas )

HERSCHEL H. FRIDAY, JR.

ROBERT V. LIGHT

Boyle Building .

- Little Rock, Arkansas

Attorneys for Appellees in No, 14

HERSCHEL H. FRIDAY, JT.

- ROBERT V. LIGIT

‘Attorneys for Respond: uts in No, 83

October Ps? 1960 |