# Brief for Appellees and Respondents — Shelton v. Tucker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0303%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Appellees and Respondents - **Published:** January 1, 1960 - **Citation:** 364 U.S. 479 ## Text 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 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 | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0303%3A4. Public record. Not legal advice.