Brief for Respondents — Shelton v. Tucker

fLE COPY. fF FILED

NOV 1 1960

: ——F AMES KO BROWNING, Clerk

__ SUPREME COURT OF THE UNITED STATES

——.. October ‘Perm, +960 —— ———

we

Nerd No: 83

B. T. Sueitox, epee, « Appellants °°

a v. er No. 14

j Everett Tucker, Ju, Prestpent, eve., ef al, A ppellees

F ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE ‘EASTERN: DISTRICT OF ARKANSAS

Max Carr, ef al., : Petitioners

v. . - No.. 83

R. A. Yowna, et al., . 5 Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT,

, so "OF ARKANSAS

;

BRIEF FOR RESPONDENTS

Bruce BeNNEtr

Attorney General

State of Arkansas

Torr THomas

Assistant Attorney General

State of Arkansas

Attorneys for Respondents.

-

<n PARAGON PRINTING CO . LITTLE ROCE

ae “ee. ae

~ pat e PAGE ,

Opinion of the Court Below . —.

| Jurisdiction | ; : a . 1

Question Presented @ | ]

__ Statutes _tnvelved ~~ : ae i = 2

Statement . Hi 2

Argument _ : co . die

Conclusion’ . Peter : hare : ieee,

CITATIONS

CASES: —

= Adler v. Board of Education, 342 U.S. 483 es 3,6

Bates v. City of Little Rock, 361 U.S. 516 oy - 4

Beilan v. Board of Education, School, District of | : pa

‘Philadelphia, 357 U.S. 399. pee

Garner v. Los Angeles Board of Public: Works,.341 U.S. 716 3.

> ‘

- Lerner v. Casey, 357 USS. 468 tocoscecceet encentcneee stots snetnon un 3

NAACP. + Alabama, 357 US. 449 kesioig”

STATUTES:

Ark. Stats. (1947) $80-12297: 2 3 2

Ark. Stats. (1947) 80-1230 ; ae a

Ark, Stats. (1947) $g0:1231 ". 7 2

Ast: Stats. (1947) $80-1232 | | ? 2

| eget = :

Ark, Stats. (1947) §80-1304(b) 4

as ; ; 5

SUPREME COURT OF THE UNITED STATES

( Me ‘tobe eT erni, 1969:

ee a

4 ; ‘No . 14—No, 83

ae |

J B. T. Suevrox, ef al., Appellants:

eos wae : . ®

$e. 3 ,

e v. ; ‘ No. 14

E Evene ere Tucker: Jr, Prestvent, Evc., ef al., Appellees

x ON APPEAL FROM THE UNITED STATES DISTRICT COURT

< . FOR THE EASTERN DISTRICT OF ARKANSAS

2 . =

Max Carr, et al., 9. 6. . Petitioner rs

4 Vv. :; No . 83

2 : ays

ae Rk. A. Younes, ef al., . Respondents

i ON WRIT OF -CERTIORART TO THE SUPREME COURT

= OF ARKANSAS

. é ‘

% Saye BRIBF FOR RESPONDENTS

ay - <

. OPINION BELOW

| = The opinion of the Supreme Court of Arkansas is

axe ‘ oe ° od ,

ee reported at 351 S.W. 2nd 701.

Fe . = .

; ° JU RISDICTION ,

The jurisdictional requisites are adequately ‘set forth

3 in petitioners’ brief.

a . QUESTION PRESENTED

This case involves the validity of the teacher-affida-

vit law, Act 10, Ark. Acts of 1958 special session. The

0

2.

petitioners allege-that Act 10 infringes upon their free--

dom of ‘speech, freedom of assembly, freedom of associa-

tion, freedom of thought, and ailied riglits, 8 guaranteed

by the Fourteenth Amendment to the Constitution of the

United States.

STATUTES INVOLVED

~ Act 10, Ark. Acts of 1958. special session ores ap-”

pears as Ark. Stats. (1947) §$§80-1229, - 80-1230, 80-1231,

80-1232. . ei

: ST ATEM ENT

The Guaenl Assembly’ of Arkansas at the “Second

Extraordinary Session of 1958 enacted Act 10, which Act

Was approved by the Gd&vernor of Arkansas. and became

effective on September 12 , 1958.

Two suits attacking the validity of Act 10 were filed

by the petitioners herein a¥@ these suits were consolidated

in the trial court. Petitioners Max. Carr, a Professor

at the University of Arkansas and Ernest T. Gephardt,

a .teacher at. Little Rock Central High Sehool, brought

these actions for themselves and others similarly. situated. .

Asa condition precedent to employment, Act 10° re-

‘quires’ the filing of-an affidavit by all administrative per-

sonnel and teachers in the public schools, colleges and

universities, listing “all organizations of which they have

been members or to which. they have paid dues or ‘made

regular contributions within the past five years. - Other

prov isions of the act nullify any contract made in viola-

tion ,of the statute, permit the recovery of funds paid

under such a void contract and fix civil and criminal

penalties for the: willfpl filing of a false affidavit.

The petitioners have refused to execute the affidavit

as required by Act 10,

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ARGUMENT. |

The principal argument in this ease fs advanced by

a companion brief filed by the other respondents herein

Which we adopt in its entirety.

Since other aspects of this case are adequately set

forth in the companion brief. this argument will be con:

fined to the constitutionality of Act 10.

Act 10, unlike other législative enactments considered

hy this Court,” contains no discharge provision. < It

merely requires the local school boards and the governing

hodies of institutians of higher learning to ascertain past

*- and present organizational memberships of their respec-

‘tive faculties. The right of a public employer -to knéw

che’ organizations to which its employees belong has been

recdgnized in Garner -v. Los Angeles’ Board of Public

Works, 341 U.S. 716: ‘Adler vy. Board of Education. of

the City of New York, 342 U.S, 483; Beilan v. Board of

Education, School District of Philadelphia, 357 U.S. 399 ;

and Lerner-v. Casey, 357 US. 468, | |

In Adler vy. Board of Education of the City of New

York, supra, this Court said: ‘>

“Tt is-clear that such persons have the right

under ovr law to assemble, speak, think and be-

lieve as they will, Communications Assn. y.

Douwds, 339 U.S. 888. Ti is equally clear that they

have no right to work for the State in the school

system on their own terms. "wmited Public Work-

ers v. Mitchell, 230 U.S. 75. Thev hhay work for

the school system upon the reasonable terms laid

down by the proper authoritfes of New York. If

they do not choose to Work on such~ terms, they

» are at liberty to‘retain their beliefs and associa-

iions and go elsewhere, .. .

The petitioners cannot dewand that they be em-

loved by ‘the school authorities with no investigation

of their backgrounds. or present and past associations,

If they feel that it would he to their detriment or foreign

to their beliefs to comply with the provisions of Act 10°

they are not forced to do so and are free to seek employ-

nent elsewhere. — It is true that if they do not comply

they can uot be employ ed, but this fact does not de my them

any constit utior ral right, for no teacher in the State.of

Arkansis as a vested right in his job” In Arkansas

teachers: are hired on a “Year-to-year (basis and the only

specific sec urity that a teacher has be ‘vond the end of a

year iv the statutory provision. that if’ a teacher, is ‘not

notified within 10 days aftet the end ef a school vear that

his contract has hot been renewed, it is automatically re-

newed for the following vear, Ark. Stats. varied §s0-

1304(b). ‘

Act 10 was not designed to -abrogate the constitn-

tional rights of any member of the te: aching -profession,

but is designed as an aid to the school boards and gov-

erning bodies of the colleges and universities in determ-

ining an. applicant's qualifications: and fitness for em-

ployment in the respective institutions, i é

The petitioners further argue. that Act 10, ‘even if

valid, is subject to being: used in dn unconstitutional main

ner. This arguinent.is premised on the ground that, ‘*:

statute which compels disclosure. of assoctations may be

unconstitutional without further direct governmertal -ac-

tien of a punitive lature, if the governmentally. forced

disclosure: sets in Motion private action whieh has the ef-

fect of depriving one of his constitutional rights’’, To.

‘support. their argument they rely on National Associa.

tion for the. Adv ancement of Colored Pe ‘ople vy. Alabama,

oF C S. $49; and Bate 2 Pe; ity Of ¢ Little Rock. O61 US.

4)

Mi. These cases are readily distinguishable from the

case at hand. In the Alabama case it Was held that the

Association could: not le compelled by a State court to

disclose its membershiq: lists in connection with an action

broughf by the State on account of its alleged noncom-

pliance with the Alabama ‘statutes dealing with foreign

_ corporations, — This Court said: **).. The issues in the

litigation commenced by: Alabama, . . were whether. the

character of petitioner and its activities in Alabama’ had

teen such as to make petitioner subjest to the registra-

tion statute, and whether the extent of petitioner's activi- |

lies without qualifying suggested its perimanent ouster

from the State: Without intimating the slighest- view

upon, the merits of these issues, we are unable to perceive

that the disclosure: of the names of petitioner's rank- camped

: file my smbers has a subst: antial hearing on either of then.”

The Bates case tarned on the: same peaeaee ome ‘that

“there was ‘no rele ‘ant correlation between the power of

the municipalities to Impose aceupation ‘license taxes and

the eonpulsory “disclosure and publication, of niember-

ship lists of the local branches of the National Associa-

tion for the Advancement of Colored People’.

This Court has recognized Inany times the « rele-

vanev’* and ‘justification’ of obtaining from employees

lists af past and present organizations of ‘which they have,

heen, or are, members. Ht Is quite clear that-the em-

nlovers in this case have abundant justification fot dis- *-

covery of: the ‘past: and present associations of employ:

CCS, < ae

In further support of their “disclosure argument.

the petitioners place their full Weeht on the testimony

Amis Gathridge, | Even the petitioners must in alk

candos admit that Gothridge does not speak ®for UV eX-

cent aonipority erodp in Arkansas. His testimony is

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wholly insufficient to show that Act 10 will be applied by

the State and its agencies in such a. Way as to violate the

petitioners’ constitutional rights. - Rather the testimony

of those actually charged with administering this Jaw is -

the true criterion of its administration. . The President

of the University of Arkansas testified that the Board of

Trustees had ordered the filed affidavits be held confi-

‘dential and that they are ina locked filé in the secretary’s

offiee (R.65). It is also clear f@m the- record that the:

Little Rock School Board was treating the records con-

fidential (R.77, 78). ‘

The petitioners’ entire argument on ‘disclosure’’

must be‘summed up as being prospective in nature. This

is an ‘improper consideration, when the constitutionality

of an act is in issue?» If a legislative enactment could

~ be adjudged unconstitutional. on the Ihsis of hypothetical

possibilities of abuse, then the constititionality of prac-

tically every statute would be brought into question. But

courts should ‘‘avoid constitutional adjudications on

merely abstract or speculitive issnes’’l Adler y, Board ‘of’

Education, supra (F rankfurter, #. dissenting).

If the petitioners’ have any fear of the prospective.

application of Act 10 then their proper remedy, will be

to bring a suit challenging. its unconstitutional use after

such abnse has occurred, - The Supreme Court of Ar:

kansas at their own instance read into the Act a limita-

tion not. there expressed in the following language:

“We do not think this testimony sufficient to

show that. the act will be applied by the state and

ifs agencies in such a wav as to violate the apnel-

lants’ Gonstitutjonal rights. In reaching this

“ ¢onclusion -we are not um mindful of the settled

principle that a statute, even Ahoueh fair on its face,

« may’ become invalid if it is administered by the

= agg ‘with an evil eve and an unequal hand’ F ick

Wo. v. Hopkins, 118 U8. 356,"

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Moreuver, even if the affidavits, should be made pub-

lic it still cannot be speculated that any teacher would be’

discharged for the reason that Act 10 does not require. a Es

school board to take any action, regardless what asso¢ia-—

tions are revealed. __

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“) fe CONCLUSION

“The petitioners have defied a reasonable legislative

enactynent of the State of Arkansas. — Nothing’ adduced

at the trial shows that Act 10 has been applied in’ such

a way as to violate the petitioner’s constitutional rigits

or that ah 2h legishition attempts to inquire

about any afyociation other than that properly authorized. -

The authorization is to secure information properly: in.

aid of the school boards and governing bodies of the col-

leges and universities. in selecting competent personnel.

The decision below was clearly correct, We respee-

tiveiy submit that the Judgmént. below should be affirmed.

e .

Respectfully submitted,

Bruce Bexnerr

Saran, | 7

Altdrney General

State of Arkansas

Titorre THomas

Assistant Attorney General

“State of Arkansas

“ Atforneys for Respondents

October) 27, 1960 te Roe

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SUPREME COURT OF THE UNITED STATES

"Nos. 14 AND 83.--OcToBER TERM, 1960.

—

<=

Rome hs On’ Appeal From the |

B. T. Shelton, et al., Appellants; Unjted States Dis-

14 v. trict Court for the

‘Everett Tucker, Jr.. ete., et al.| Eastern District of

'- Arkansas.

Max-Carr, et al., Petitioners,)Qn Writ of Certiorari

83 v. to the Supreme Court

R. A. Young, et al. @f Arkansas.

{ December 12,°1960. |

Mr. Justice Stewart delivered the opinion of the

Court.

An Arkansas statute compels every.teacher, as a condi-

tion of employment in a State Supported school or coll ge,

to file annually an affidavit listing without limitation

every organization to which he has beionged or regularly

contributed within the preceding five years. At issue in:

these two cases is the validity of that statute under the

Fourteenth Amendment to the Constitution. No. 14 is an

appeal from the judgment of a three-idge Federal Dis-

trict Court upholding the statute’s validity, 174 F. Supp.

351. No. 83 is here on. writ of certiorari to the Supreme -

Court of Arkansas, which also held the statute constitu-

tionally valid. 106 Ark. Law Rep. 139, 331 S. W. 2d

701. | 3 | ee

The statute in question is Act 16 6f the Second F:xtraor-

dinary Session of the Arkansas Genera] Assembly of

1958. The ‘provisions of the Act are summarized in ‘the

opinion of the District Court as follows: '

“Act 10-provides in substance that no person shall

be employed or elected to employment as a superin-

- ae SHELTON v. TUCKER. |

tendent, principal or teacher in any publie school in er

Arkansas, or as an instructor. prefessor-or teacher in -

- any public institution of higher learning in that State

until such person shall have submitted to the appro-

priate hizing authority an affidavit listing all organi- —

zations to which he at thé time belongs and to which.

he has belonged during the past five years, and also

listing all organizations to which he at the time is

paying regular dies or is making regular contribu-

-tions, or to which within the past ‘five years he has

paid such dues or made such contributions. - The Act

further provides, among other things, that any con-\

tract entered into with any person who has nbt filed

the prescribed affidavit shall be void; that no public

moneys shall be paid to such person as compensation

for his services: and that any such funds so paid may

* recovered back either from the person receiving

such furfds or fromthe board of trustees or other gov-

erning body making the payment. The filing of’ a

false affidavit is denounced as perjury, punishable by

a fine of not less than five hundred nor more than one

thousand dollars, and, in-addition, the person filing

the false affidavit is to lose his teaching license.” 174

F. Supp. 353-354. fos aes ,

‘

' The statute is in seven sections. Section | provides: “It is hereby

_ declared that the. purpose of this act is to provide assistance in the

administration and financing of the public schools of Arkansas. and

institutions of higher learning supported wholly or in part by public

funds, and it is hereby dete mined -that it will be beneficial to the

publie sehools and imstitutions of higher learhing and the State of

Arkansas,if certain affidavits of ‘membership. are required as herein-

after provided.” :

Section 2 provides: “No superintendent, principal, or teacher shall

he emploved, or eleeted in aiy elementary oF secondary school by the

district operating such school," and ho Instructor, professor, or other

“teacher shall be employed or elesvted any institution of higher learn-

ing, or other educational’ institution. sitpperted wholly or in part by

»

te em

SHELTON v. TUC UCKER. ——

“Sa oes

heme provisions must be considered against the exist- ©

ing system of* teacher employment.required by Arkansas

law.. Teachers there are hired on a-year-to-year basis.

They arg not covered by a civil service. system, and they

have no job security beyond the end of each school year.

The closest approach to tenure is a statutory provision

public funds, by the trustees or governing authority thereof, until, as

a condition precedent to such employment, such superintendent, prin-

cipal, teacher, instructor or professor shall have filed with such board

cf trustees or governing authority an affidavit as to the names and

addresses of all incorporated and/or unincorporated associations and

organizations that such superintendent, principal, teacher, instructor

or professor is or within the past five years has been a member of, or

to which organization or association such superintendent, prinei-

pal, teacher, instructor, professor, or other teacher, is presently pay-

ing, or within the past five years has paid reguiar ‘dues, or to which

the same is making or within the past five vears has made regular

contnbutions.” : era

Section 3 sets out the form of affidavit to be used.

Section 4 provides: “Any contract entered. into by ‘any board of

‘any school district, board of trustees of any institution of +higher learn-

ing, or other educational institution supported wholly or in part by

publie funds, or by any governing authority thereof, with any, super-

intendent, principal, teacher, instructor, professor, or other instrue-

tional personnel, who shall not have filed the affidavit required in

Section 2 hereof prior to the employment or election of sueh person

and prior to the making of such contracts, shall be null and void and

no funds shall, be paid under said contract to such superintendent;

principal, ‘teacher, instructor, professor,‘or other instructional, per- *

sonnel; any funds so paid under said contract to such superintendent;

principal, teacher, instructor, professor, or other instructional per-

sonnel, may he recovered from the’ person receiving the same and /or

* from the board of trustees or other governing authonity by suit filed

in the eireuit court of the county in which sue *h contract was made,

and any judgment entered by such court in such cause of action shall]

be a personal judgment against the defendant therein and upon the

official bonds made by ‘such defendants, if any. such bonds be in

| -existence.”’ r .

: Seetion 5 provides that a teae her filing a false affiaavit shall be

| ginity of perjury, punishable bv a fine, and shall forfeit his leense to

. —r

40 SHELTON v, TUCKER.

for the automatic renewal of a teacher’s contract if he is “A

not notified within ten days after the end of a sehool year

that the contract has not*been renewed. Ark. 1947 Stat.

Ann., § 80-1304 ¢b) (1960); Wabbaseka School District

No. 7 v. Johnson, 225 Ark. 982, 286 S. W. 2d 841.

The plaintiffs in the-Federal District Court (appellants

here) were’ B. T. Shelton, a teacher employed in the Little.

Rock Public School System, suing for himse]f and others —

similarly situated, together with the Arkahsas Teachers

Association and its Executive Secretary, suing for the

benefit of meribers of the Association. Shelton had been

employed in the Little Rock Special School District for

twenty-five Years. In the spring of 1959 he was notified

that, before he could be employed for the 1959-1960 school

year, he must file the affidavit required by Act 10, listing

all his organizational connections over -the previous five

years. He declined to file the affidavit, and his contract

for. the ensuing school year was not renewed. - At the

' trial the evidence showed that he was not a member of the

Communist Party or of any organization advocating the

overthrow of the Government by force, and that he was a

member of the National Association for the Advancement

of Colored People. The court upheld Act 10, finding the

information it-required was “relevant,” and relying on

——— +

teach in any school or other 1 institution of learning re wholly

or in part by puolie funds:

Section 6 is a separability provision.

_ Seetion 7 is-anr emergency clause, reading in part as follows:

“It is hereby determined that the decisions of the United States

‘Supreme Court in- the school segregation cases require solution of a

great variety of local public school problems of considerable com-

‘plexity immediately and which involve the health, safety and general .

” welfare-of the people af the State of Arkansas, and that. the’ purpose

of this act is to assist in the solution of these problems and to prov: ide

for the more efficient administration of public edueation..

Pe eee rk ee ee Me

| + SHELTON v. TUCKER... 3

several decisions of this Court, particularly Garner v.

Board of Public Works of Los Angeles, 341 U. 5. 716;

Adler v. Board’ of Education, 342 U.S. 485; Beilan v.

Board of Education, 357 U. 8. 399:-and Lerner v. Casey,

357 U.S. 468." os ay

The plaintiffs in the State court proceedings (petition-

ers here) were Max Carr, an associate professor at the Uni-

versity of Arkansas, and Ernest T. Gephardt, a teacher at

Central High Schocl in Little Rock, each suing for him-

self and others similarly situated. Earh refused to exe-

- cute and file the affidavit required by Act 10. Carr

executed an affirmation * in which he listed his member-

ship in professional organizations, denied ever having been

a member of any subversive organization, and offered to

answer any questions which the University authorities

might constitutionally ask touching upon his qaalifica-

‘tions as a teacher. Gephardt filed an affidavit stating

that he had never belonged to a subversiye organization,

‘disclosing his membership in the Arkansas Education As-

sociation and the American Legion, and also offering to

answer any questions which the school authorities might

onstitutionally ask touching upon his qualifications as a

Reacher. Both were advised that their failure to comp

with the requirements of Act, 10 would make impossible

their re-employment as teachers for the following school

year. .The Supreme Court of Arkansas upheld the con-

-stitutionality of Act 10, on its face and as applied to the

petitioners. 106 Ark. Law Rep. 139, 331 8. W. 2d 701.

2 In the same proceeding the court held constitutionally invalid an-

Arkansas statute making it unlawful-for anv member of the National

Association for the Advancement of Colored People to -be employed

_ by the State @f Arkansas or any of its subdivisions. 174 F. Supp. Bi

‘The affirmation recited that Carr was “eonscientiously, opposed to

taking an oath or swearing in any form ; ¥:

-

“>

ao

6 «SHELTON v, TUCKER.

3

It is urged here, as it was unsuccessfully urged through-

out the:préceedings in both the Federal and State courts,

that Act 10 deprives teachers i in Afkansas of their rights .

to personal, associational, and academic: liberty, pro-

tected by the Due Process Clause of the’.Fourteenth

* Amendment from invasion by state action. In consider-

ing this contention, we deal with two basic postulates.

First. There can. be-no doubt of the right of a state to

investigate the competence and fitness of those whom it

hires to teach in its schools, as this Court before now has

had occasion to recognize. “A teacher works in a sensi-

tive area in a schoolroom. There he shapes the attitude

of young minds towards -the society in which they. live.

In this, the state has a vital concern.” Adler v. Board of -

Education, 342 U.S. 485, 493. There is “no requirement

‘in the Federal- Constitution that a téacher’s ciassroom

conduct be the sole basis for determining his fitness.

Fitness for teaching depends on a broad range of factors.”

Beiian v. Board of Education, 357 U. S. 399, 406.:

_ This controversy is thus not of a pattern wit such

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

Bates v. Little Rock, 361 U. S. 516: In those cases the

' Court heid that: there was no substantially relevant cor-

relation between the governmental interest asserted and

the state's effort to compel disclosure of the membership |

lists involved. Here, by contrast, there canbe no ques-

‘tion of the relevance of a state’s inquiry into, the fitness

atid competence of its teachers."

‘ The actual holdings in Adler and Beidan. peaeneroe the validity of

teachers’ discharges, are not relevant to the present case.

* The declared purpose of Act 10 is, “to provide assistance in the

administration and” finaneing of the pubhe schools . . * The

declared justification for the: emerge ney clause is “to assist in the solu-

e

’. Open Our Schools.

SHELTON v. TUCKER. q

Second It is not disputed that ta-compei a teachin

disclose his every associational tie ‘is to impair

a teacher's right of free assuciation, a right closely

allied to freedom of speech and a right which, like free

speech, lies at the foundation of a free society. De Jonge

v. Oregon, 299 U.S. 353, 364; Bates v. Little Rock, supra,

at 522-523. Such interference with personal freedom is

conspicuously accented when the teacher serves at the

absolute’ will of those to whom the disclosure must be

made—those who any year can terminate the teacher's °

employment without bringing charges, without notice,

without a hearing, without affording an opportunity to

explain. ,

The. statute does not provide that the information it

requires be kept confidential. Each school board is left

free’to deal with the information -as it wishes.*. The

record contains evidence to indicate that fear of publie

disclosure i is neither theoretical nor grourvlless, * Bven if

tion” of problem= raised by “the deéeisions ot the United\ States

Supre me Court in the school segregation cases.” See note TM But

neither the bfeadth and generality of the declared purpose ndr the

possible irrelevance ofthe emergency provision detract from the

existence of an actual relevant ‘state interest in the mquiry.

® The record contains an opinion of the State Attorney Ge ndral

that “it is an administrative determination, to be made by the tespec-

tive Boards, as to the disclosure of information contained in the\affi-

davits.” The Supreme Court of Arkansas has held only that “the

affidavits need not he opened to pubhe inspection . 2. 106 Ark.

Law Rep. 139, 144, 331 8. W. 2d 701, 704. (Emphasis added.)

7 In the state court proceedings a witness who was a member of the

Capital Citizens Council testified that “his group intended to gain

access to some of the Act 10 affidavits with a-view to clminating fram

the school system -persons who supporter) organizations unpopular

with the group. Among such organizations he named the American

Civil Liberties Unien,- the Urban League, the American Association

of University Professors, and the Women’s Emergeney Committee to

a

4

8 _ SHELTON v. TUCKER. °

there were no disclosure to the general public, the pressure-

upon @ teacher to avoid any ties which might displease -— .

those who control his professional destiny. would be con-

stant and heavy. Publie exposure, bringing with it the

possibility of public pressures upon school boards to dis-

charge teachers who belong to unpopular or minority

organizations, would simply operate to’ widen and aggra-

' vate the-impairment of constitutional liberty. =

The vigilant protection of constitutional freedoms is

nowhere more vital than in the community of American

schools. , “By limiting the power of the States to interfere

with freedom of speech and freedom of inquiry and free-

dom of-association, the Fourteenth Amendment protects

all persons, no matter what their calling. But, in view

- of the nature of the teacher's relation to the effective exer-

‘eise of the rights which are safeguarded by the Bill of

Rights and by the Fourteenth Amendment, inhibition

of freedom of thought, and of action upon thought, in

the. case of teachers brings the safeguards ‘of those

amendments vividly into operation. Such unwarranted

inhibition upon the free spirit of teachers .. © has an —

unmistakable tendency to chill that free play of the spirit

which all teachers ought espécially to eultivate and prac-

tice; it makes for caution and timidity in their associations

by potential teachers.” Wieman v. U pdegraff, 344 U.S.

183, 195 (concurring opinion).- “Scholarship cannot .

flourish in an atmosphere of suspicion and distrust.

-Teachers and students must always remain free to inquire,

to study and te evaluate... .” _ Sweezy v. New Hamp-

shire, 354 U.S. 234, 250. i

II.

. The question to be decided here is not whether the:

State of Arkansas can ask certain ofits teachers about all

their organizational relationships. It is not whether the

State can ask ‘all of its teachers about certain of their

&%,

SHELTON v. TUCKER. a D.

associational ties. - It is not whether teachers can be asked.

now many organizations they belong to, or how much

time they spend in ‘organizational activity. The ques-

‘tion is whether the State can ask ev ery one of its teachers

to disclose every single organization with which. he has

been associated over a five-year period. The scope of the

inquiry required by Act 10 is completely unlimited. The

statute requires a teacher to reveal.the church to which

he belongs: or to which he has given financial ‘support.

It requires him to disclose his political party, and every’

-political organization to which he may have contributed

over’a five-year period. It requires hini to. list, without

number, every conceivabie kind of associational tie—

sucial, professional, political, avecational, or religious.

Many such relationships could have no possible bearing

upon the teacher's occupational competence or fitness.

In a series of decisions this Court has held that. even.

‘though the governmental purpose be legitimate and sub-

stantial, that purpose cannot. be pursued by means that

broadly stifle fundamental personal libertiés when the

end can be more narrowly achieved." Thecbreadth of

legislative abridgment must be viewed in the light of less

drastic means for achieving the same basic perpen,

——

“In other areas, involving dillereas constitutiona' issues, more

administrative leeway has been thought allowable in the interest of

inereased cfGciency in accomplishing a cleariy gag ae central

purpose. See Purity Extract Co. v.. Lynch, 226 WV. S. 192: Jacob

Ruppert v. Caffey, 251 US. 264; Schlesinger v. Wisconsin, 270.U.S8

230, 241 (dissenting opinion) ; Queenside Hills Co. v. r. Sazl, 328 U. S.

SO, 83. But ef. Dean. Milk Co. v. Madison, 340 U. 8. 349.

# See Freund, Competing Freedoms in neon Cecatiateei Law,

13 U. of Chietago Conference Series 26, 32-32: Richardson, Free-

Yiom of Expression and the Function of Courts, 65 Harv. L. Rev. 1, 6.

23-24; Comment, Legislative Inquiry into Political Activity: First

Amendment Immunity From Committee Interrogation, 65 Yale L. J.

1159, 1173-1175.

10 °° SHELTON +. TUCKER.

Ih ais ‘ ll Vv. Griffin, 303 U3. 444, the Gourt invalidated -

an ordinance prohibiting all distribution of lite ‘rature at

any tine or place in Griffin, Georgia, without a license:

pointing out that so broad an interference was ainnes-

essary to accomplish legit#miite municipal auns. In

Schneider v. “State, 308°C. -S #147, the Court dealt

_with ordinances of four. differeit municipalities which

either banned or imposed prior restraints upon the dis-

_tribution of handbills: In holding the ordinances invalid,

yi Court noted that: where legislative abridgment of

“fundamental personal rights yl liberties” is asserted,

“the courts should be astute to examine the effect of the

challenged legislation. Mere legislative preferences or

beliefs respecting matters of public conyenience may well

support regulation directed at other personal activities:

but be insufficient to justify such as diminishes the exercise

of right’ so vital to the majntenance of democratic insti-

“tutions.” 308 U.S., at 161. In Cantwell v.¢ ‘onnecticut,

310 U. S296, the Court said that “conduct - remains

sabject t ri > ieanibation for the protection of society,” but

pointed out that in each case “the power to regulate must -

be so exercised as not, in attaining a Papereseee ch ‘—e

unduly-to infringe the protected freedom.” 310 U.

304. . Illustrations of the same constittitional rete a are

to be found in many other decisions of the C ourt, among

them, Martin ‘vy. Struthers, 319 U, S..141 Saia v. New

York, 334 U.S. 558;.and Kunz v. New York, 340 U.S. 290.

As recently as last Term we held invalid an ordinance

prohibiting the distribution of handbills. because the

breadth of its application went far beyond what was

necessary to achieve a legitimate governmental purpose.

Talley v. California, 362 U.S. 60. In that case the Court

noted that it had been ‘ ‘urged that this ordinance is aimed

at providing a way to’ identify those responsible for

‘fraud, falge upsdieviabiey tag and libel. Yet the ordinance is

. 1p no manner sq limited . .:. . Therefore-we do not pass

2

“*

SHELTON 9. TUCKER 11

on the validity of an ordinance hinited to prevent these

-. or any other supposed evils. This ordinance simply bars

all handbills under all cireumstan*¢s anywhere that do

“not have the names sud addresses printed on them in the

place the ordinance requires.” 362 U.S.: at 64.

> The untimited and indiscrimitmate sweep of the statute

now before us brings it within the ban of our prior cases,

The statute's comprehensive. interference with associa-

tional freedom goes far beyond what might be justified

in the exercise‘of the State's legitimate inquiry imto the.

fitness and competency of its teachers. The judgments in

beth cases must be reversed. :

. . It is so ordered.

ws .

s Palaapat5*

RETR Ee AF

SUPREME COURT OF THE UNITED STATES

“Nos. 14 anp 83.--Ocroper Tern, 1°60.

(On Appeal From the

‘B. T.: Shelton, et al., Appellants, United States Dis-

4. oo he - trict Court for, the

Everett Tucker, ‘Jr..-ete.. et al.| Eastern .District of

: Arkansas.

~ Max Carr, et. al., Petitioners.) On Writ of. Certiorari ,

. 83 on v. to the Supreme C ourt’

R. A. Young, et al. of Arkansas.

[ December 12, 1960. | ,

Mr. Justice Fran kFurter, dissenting. 5 &

As one who has strong views against crude intrusions by

the state into the atinosphere of creative freedom in which ~~

alone the spirit and mind of a teacher can fruitfully fune-

ti@n, I may find displeasure with the Arkansas legislation

now under review. But in maintaining the distinction -

‘ between private views and constitutional restrictions, I

am constrained to find that it does not exceed the permis-

sible range of state action limited by the Fourteenth

Amendment. By way of emphasis ! therefore add a few »

- words to the dissent of Mr. Justice Haran, in which r

concur. ,

It is meade: at the outset, to o establish what | is not in-

volved‘in this litigation: '

(1) As the Court recognizes, this i is not a case where,

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

Little Rock, 361 U. 5.516, a State, asserting the power to

compel disclosure of organizational affiliations, can show

-.no rational relation between disclosure and a govern-

mental interest justifying it. Those cases are. relevant.

here only because of their recognition iat an interest in

2 "SHELTON >. TUCKER.

ia , ‘

* privacy, in non-disclosure. may w.der appropriate eireun-

stances claim cotistitutional protection. The question

here is‘ whether that interest is overborne by a counter-

vailing publie interest. To this concrete. limited QUes- -

tion—whether the State's interest in knowing the nature

of the organizational activities of teachers employed by

it or by institutions which it supports, as a‘ basis for

. appraisitig the fitness of those teachers for the positions

which they hold, outweighs the interest recognized | in

NA. A.C. P. and Bates—those earlier decisions then:

selves give no answer. . he | |

*(2)*The Court's holding that the Arkansas statute js

unconstitutional does not, apparently, rest upon. the

threat that the information »-" ich it requires of teachers

will be revealed to the. public. In view of the opinior

of the Supreme Court of Arkansas, decision here could

not, I believe, turn on a-elaim that the teachers’ affi-

davits will not remain confidential. That court. has

expressly said that “inasmuch as the validity of the act

depends ufon its being construed as a bona fide legislative

effort to provide school boards with needed information, it

Lecessarily follows that the affidavits need not be opened

to public inspection, for the permissible purpose of the

statute is to enlighten the school board alone.” 106 Ark.

Law. Rep. 139, 144-145, 331 S..W. 2d 701, 704. If the

validity of the statute depended on this matter. the

pronouncement of the State's highest judicial organ would

have to be*read as establishing—the earlier view of the

State Attorney General notwithstanding—that the statute. .

does not authorize the making public of the affidavits.

' Even were the Arkansas court’s language far more ambig-

uous than it is, it would be our duty so to understand its».

‘opinion, in accordance with the principle that “so,far as 4.

statutes fairly may be construed in such a way as to avoid

doubtful ‘constitutional questions “they should be so

construed.” Far v. Washington, 236 U. S. 273. 277.

a

SHELTON -v. TUCKER. 3

(3) This is not a case in which Lovell v. Griffin, 306

~ULS. 444; Cantwell v. Connecticut, 310 U.S. 206: Saia v.

New York, 384 U.S. 558; and Kunz v. New York, 340°

U.S. 290, call for condemnation of the “breadth” of the

statute. Those decisions struck down lice SINE laws

“which vested in administrative officials.a power of éensor-

ship over communications not cenfined within standards

designed to curb the dangers of arbitrary or discriminatory

official action. The “breadth” with whieh the cases were

concerned was the breadth of unrestricted disegetion left

*" to a censor, which permitted him to make his own sub-

jective opinions the practicafly unreviewable measure of

- permissible spee ch.’ -Nor is = a case of the nature of

Thornhill vy. Alabama, 310 U.S. 88, and Herndon. v.

Lowry, 301 ©. 3. 242° aS penal mone which

the Court found impermissibly “broad” in quit® another

sense. Prohibiting, indiscriminately, activity within and

without the sphere'of the Fourteenth Amendment's pro- .

tection of free expression. those statutes had the double

viee of deterring the exercise of constitutional freedoms

by Inaking the uncertain line of the Amendment’s appli-

cation determinative of criminality and of prescribing

indefinite standards of guilt, thereby allowing the poten-

tial vagaries.and prejudices of j juries, effectively insulated

— Q ome

' See also Hague v. C. EF. 0.. 307 US. 496: Schneider v Stthe. 30s

U. 8. 147 (the Irvington ordinance) : Largent v. Texas, 318 UL S

418: Jones v. Opelika. 319 U.S. 103. vacating 316 U.S. 584 (the

Opelika ordinance); Niemotko v. Maryland, 340 U.S. 268: Joseph

Burstyn, Inc., v. Wilson, 343 UsS. 495: Gelling v. Texas. 343 U.S

M0: Superior Films, Inc., vy; Department of Education, 346 US

5ST: Staub v. Baxley, 355 v s. ei ef. Marsh v. Alabama, 326

U.S. 50h: Tucker vo Teras, 326 U.S. 517. The common-law count

in the Cantwell case involved cons recast similar to those which

were determinative. of the deers} ons cited in text and note, at note 2, -

infra. a. ‘ -

2 See also Stromber; Tg California, 283 US 350. Winters vo Neu

York, 333 U.S. 507.

4 SHELTON ». TUCKER:

_ against control by reviewing éourts, the power to intrude

upon the protected sphere. The statute challenged in

the present cases involves neither administrative disere- .

tion to censor nor vague, overreaching tests of criminak

vesponsibility.

Where state assertions of authority are attacked as

impermissibly rescrietive upon thought, expression, or

association, the existence vel non of other possible les:

restrictive means’ of achieving the object which the

State seeks is, of course, a constitutionally_relevant con-

sideration. This is not because: some novel. particular

_rule of law obtains in cases of this kind. Whenever

a

the reasonableness and fairness of a ‘measure are- at

issue—as they are ir every casé in which this Court must

apply the standards. of reason and fairness. with the appro-

priate scope to be given thiose concepts, in enforcing the

Due Process Clause of the Fourteenth Amendment as a

limitation upon state action—the availability or unavail-_

ability of alternative: methods of proceeding is germane.

Thus, a State may,not prohibit the distribution of litera-

. ture on its cities’ streets as a. means of preventing littering,

when the same end might be achieved with only slightly -

greater inconvenience by applying the sanctions of the

penal law not tothe pamphleteer who distributes the

paper but to the recipient who crumples it and throws it

away. Hague v. C.-1. Q., 307 U. S. 496; Schneider ‘y.

State, 308 U.S. 147; Jamison v-Teras. 318.U.S. 413. Nor

tuay a State protect its population from the dangers and

incitements of salacious books by restricting the reading

matter of adults to that which would be harmless to the

susceptible mind of @ child. , Butler v. Michigan, 352

U.S. 380. And see. DeJonge v. Oregon, 299 U. S. 353:

Talley v. California, 362 U. S.°60.° But the consideration

: Language. characterizing state statutes as overly broad has some-

times been found in opinions where it was unnecessary to the resuit,

and merely meant to.express the idea that whatever stute interest Was

oad

+ PEGS TREN 2 2

SHELTON ». TUCKER. 7° 5

of feasible alternative modes of regulation in these cases

did not imply that the Court might substitute its Own

choice among alternatives for that of a state legislature,

or that the States were to be restricted to the “narrowest”

workable means of accomplishing an end. See Prince vy.

Massachusetts, 321 U.S. 158, 169-170. (Consideration

of alternatives may focus the precise exercise of sate

legislative authority which i is tested in this Court by the

standard of reasonableness, but it does not alter -or dis-

place that standard. The issue remains whether, in light

of the particular kind of restriction upon individual liberty

which a regulation entails..it is reasonable for a legislature

to choose that form of regulation rather than others less

restrictive. To that determination. the range of judg-

-ment easily open to a legislature in considering the rela-

tive degrees ot efficiency of alternative méais in achieving

the end it seeks is pertinent.

In the present case the Court strikes down an Arkansas

. Statute retharing that teachers disclose to school. officials

all of their organizational relationships, on the ground

that “many such relationships could have no possible

bearing upon the teacher's oecupational competence or

fitness.” Granted that a given teacher's membership in

the First Street Congregation is, standing alone, of little

relevance to what may rightly be expected of a teacher, is

that membership equally irrelevant when it is discovered.

-that the teacher is in fact a-member of the First Street

Congregation and the. Second Street Congregation and

the Third Street C ongregation and the 4-H Club and the

; $- H Club end half a dozen other groups? Presumably, a

\ .

there asserted as underlying a pti Was Instfficient to justify

the reguletion’s appheation to particular. circumstances fairly within

the. Fourteenth Amendment's protection. Compare Thomas \

Collins, 323 U.S. 516, with Fiske v. Kansas, 274 U.S 380 Com-

pare Mer tan v. Struthers, 319 US. 141, with Breard vo Alexandra

341.U. $8. 622° 2

J

: 4

6 SHELTOR v. TUCKER:

teacher may have so many divers associations. so InANY

s ’ .

divers commitments, that they consume his time and

energy and interes: at the expense of his work or even of

his professional dedication.—Vnlike wholly individual

Interests. Ofganizational connections—heéause. they in-

volve obligations undertaken with-relation to other per-

sens——tnay become ineseapably dematiding and distraect-

ing. Surely, a sehool board:is entitled to inquire Whether

any af its teachers hes placed himself, or is placing him-

self. in a condition where his work may siiffer. Of course.

the State might ask: “To how many organizations do vou

‘belong?” or “Huw nsuch time do you expend at organisza-

tional activity?” Gut the answer to such questions could

reasonably be re rded by & State legislature as insufh-

clent, both because the veracity of the answer is more diffi-

cult to test, in cases where doubts as to veracity may arise.

thanan the case of the answers required by the Arkansas

“statuteand because an estimate of time presently spent

~ an organize ational activity reveals nothing as to the quality

and nature of that activity, upon the basis of which

necessarily, judgment or prophesy ofthe extent of future

involvement must be based. A teacher's answers to the

questions which Arkansas asks, moreover, may serve the

purpose uf naking known to school authorities persons

_ who come into contact with the te acher in all of the phases

“of his activity in the communkysand who ean be ques-

tioned, if need be, concerning the teacher's conduct in

“matters which: this Court ean certainly not, now say are

lacking in any pertinence to professional: fitness. . It is

difficult: to understand how these particular-ends could

be achieved bysasking “certain of [the State 's] teachers

about all their organizational relationships.” or “all of its

teachers about certain ot their associational ties,” or all

of its, teachers haw many associations currently involve

them, or duting how many hours; and difficult. therefore.

ae

Nips

al

oa

SHEL TON ». TUCKER. mY o

to. appreciate why the, Court deems~ttireasonable and

forbids what Arkansas-toes ‘ask.

If I dissent from the Court's disposition in thiese cases,

itis not that T put a lew value on academic freedom.

see Wireman v. Updegraff, 344 Us. 183, 194 (concurring

opinion); Swee2zy vo New Hamapsiure, 354 U.S. 234. 245

{eoneurring opinion). It ais because that very freedom.

in its most creative reaches. is dependent. ip no small part

apen the careful and dise ‘riminating selection of teach-

ers. . This process of selection is an intricate affair. a

matter of fine ivden. mt. and ‘if it is to be informed. it

must be based-upon a comprehensive range of informa-

tion, Tam unable to say. on the face of this statute. that

Arkansas could not reasonably find that the information

which the statute requires —and whieh may not be other-

wise acquired than be asking the question which it asks—

is germane to that selection. Nor. on this record, can |

attribute to the State a purpose to employ the enactment

as a device for the accomplishment of what is eonstitu-

tionally forbidden. Of course, if the information gath-.

ered by the required affidavats is used to further a scheme

of te rminating the employment of teachers solely because

‘ot ther membership in unpopular organizations, ‘hat use,

will rin afoul of the Fourteenth Amendment. ft will be

tune enough, if.such use is made, to liold the application

of the statute unconstitutional, See Yiek Wo. v. Hop-

Ains, LIS U.S. 356. Because i do net find that the dis-

closure of teachers” associations to their sehoo! boards is.

without more, such a restriepon upen their hberty. or

upon that of the community, as to overbalance the State's

iiterest in asking the question, | would affirm the -

judginents helow.’ e

l-am authorized to,say that Mk: Jusrice CLARK, Mr.

Justice Hak.ax and Mr. Je ©» WHITTAKER agree with

.

this opinion.

soe Pe Oh atin

©

et

‘SUPREME COURT OF THE UNITE D STATES

ot . « _ .

¢ Nos. 14 anv &83.—OcToBER 1 ERM. 1Q60.

_* = i.

1On Appeal - From the

.B. T. Shelton, et al., peice) nited States Dis- -

14 v. > triet Court for the

Everett Tucker, Jr., ete.. et ak Kastern District of

Arkansas.

oom

Max Carr, et al. Pe stitioners, On Writ of Certiorari

83 , * te the Supreme Court

“R. A. Young, et al. ) of Arkansas.

.

{ December 12, 1960. |

Mr. Justice Hartan, whom Mr. Justice FranK-

FURTER, Mr. Justice CLarkK and Mr. Justick WHITTAKER

join. dissenting. |

Of course this decision has a natural tendency to enlist

-. = eo ®

“support, involving as it does an unusual statute that

touches constitutional rights whose protection in the eon-

text of the racial situation in various parts of the country

demands the unremitting vigilance of the courts. Yet

that very circumstance also serves iv remind of the

restraints that attend constitutional adjudication. It

must be. emphasized that neither of thece cases actually

presents an issue of racial discrimination. . The statute

on its face applies to all Arkansas teachers irrespective of

race, anid there is no showing that it has been diserimina-

torily administered.

The issue is whether. consistently with the Fourteenth

Amendment, a State may require teachers in jts public

schools or colleges to disclose, as a condition precedent to

their initial or’continued employment, all organizations

“to which they have. belonged. paid dues, or contributed

within the past five years. Since I believe that such a

requirement cannot he said t6 transgress the. constitu-

2 SHELTON 9. TUCKER. |

‘tional limits of a State’s Yonceded authority to determine

the qualifications of those serving it as teachers, I-am

hound to consider that Arkansas had:the right to pass the

statute in question, and therefore conceive it my duty to:

. dissents

The legal framework in which the issue must be judged

‘is clear. The rights of free Speech and association

wmbedied in.the “liberty” assured against state action by:

the Fourteenth Amendment (see DeJonge v. Oregon, 299

U.S. 353, 364; Gitlow v. New York, 268 U.S. 652. 672. :

dissenting opinion of Holmes, J.) is not absolute. Near

v. Minnesota, 283 U.S. 697, 708; Whitney y. California,

274 VU. 38..357, 373 (concurring opinion of Brandeis. J.\.

Where official action is claimed to invade these rights, the |

controlling i inquiry is whether such action is justifiable on

the basis of a guperior gove rnmental igtepest to which

such indiv idual- rights maust yield. When the action com-

plained of pertaina, to the realm of investigation, pur

ivquiry has a double ‘aspect: first, whether the inv estiga-

“tion relates toa legitimate governmental purpose ; se second,

whether, judged in the hght of that purpose, the ques-

tioned action has substantial . relevance thereto. See

Barenblatt vo U a States, 360 U.S. 109; Uphaus v.

Wyman, 360 U.S. - ;

In the two cases pe ube I think both: factors are satis-

fied. It is surely indisputable that.a State has the. right

to choose its teachers on the basis of Benesb: And I think

it equally clear, as the Canrt’ appears Wo recognize. that

information about a ‘teacher's assoc iations may be usefui

to school authorities. in. determining the Ynoral. profes-

sional, and social qualifications of the teacher: yas well as in

determining the type of service for which he well be best

suited in the educational system. See Adler v. Board of

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

cation, 357 UL. 300: see also Slochower v. Board af Kdu-.

cation, 350 U: S. 551. Furthermore, I take the Court. to

}

\\

=

the

gn

Had Gatun oe

si eee

SHELTON ¢. TUCKER * 3

acknowledge thatzagrecably to our prev ious decisions, the

State may enquire into associations to the extent ac hat the

resulting information may be in aid of that legitimate

_ purpose. These cases therefore do not present a situation

such as.weé had in V. A. A.C. Py. agi 357 U.S. 449,

and Bates v. hittle Rock, 361 U.S. 516. whibre’ the

required. disclosure bears no poss reley ance to a

legitimate state interest.

Despite - these considerations this statute is stricken

down because, in the Court's view, it is too broad, because

it asks more than may be neecéssary to effectuate the

State's legitimaté interest.- Such a statute, it is said. ea-

hot justify the inhibition on freedom —— which

so blanket an inquiry may entail. Cf. V. A. 4.0. P.

Alabama, supra; Bates v. Little Rock, supra. :

I am unable to subseribe to this view hecause | believe

it Impossible to determine a priori the place where the line

should be drawn between what would be permissible in-

quiry and ov er-broad inquiry in a situation like'this, © ere

‘taihly. the Court does hot point that place out. There

can be little doubt that much of the associational imforia-

* tion called for by ‘the statute will be of little or no use

whatever to the school authorities, but I do not under--

stand how those ‘authorities can be expected to fix. in

advance the terms of their. enquiry, so that it will yield:

only relevant information.

T do not mean te cay that alternatives such as an enquiry

limited to the names of. organizations of whose character’

the State is presently aware, or to a class of organizations

defined by their purposes, would not be more consonant

with a decent respect for the privacy of the teacher, nor

that sueh alternatives would be utterly unwerkable. I

do see, however, that these alternatives suffe Tofrom defi-

“ciencies so Obvious where.a State is bent upon discove Te

ing everything which would -be relevant to its proper

purposes, that I cannot say that it must. as a matter

° ; \

*

»

7%

40 . SHELTON 1 . TUCKER.

of ceeilidiinien compulsion, adopt some sucn means ,

instead of- those which have. been chosen here.

Finally, I need hardly say ‘that if it turns out that his

- stafute is abused,ejther by an uhwarranted pubhicizing of

the required associational disclosures or otherwise, we

would have a different kind of case than those presently

before us. See Lassiter v..Northampton> Elections Board,

360 U.S. 45, 53-54. All that is now here is: “the validity

of the statute.on its face, and I am unable to daxee that

“in this posture ‘of things the enactment can be said “te be

unconstitutional. ens

I would affirm in both cases.

eS fe

128 /—

Section 2 hereof prior to the employment or election of such

persoti and prior to the making of such contracts, shail be

nui and void and no funds shall be paid undey said con. °

tract to such superifitendent, principal, teacher, instructor,

professor, or other instructional personnel; any funds so

paid under said contract to such superintendent, principal,

teacher, instructor, professor, or other iistructional per.

‘sonnel, maybe recovered from the person receiving the

{fol. 176] same and/or from the board of trustves‘or other

governing authority by suit filed in the circuit court of the

county in which such contract wds made, and any judgment

entered by such court’ in such cause ‘of action shall be a

personal judgment agiinst the defendant therein and upon.

.- the’ official ,bonds made by such defendants, if ‘any such

bonds be in existence,

SECTION 5. Every person. who shall wilfully file a

false affidavitNander the provisions of this act shall be

guilty of pérjury,sshall be punished by a fine of not less

than five hundred doltars ($500.00) nor more than one

thousand dollars: ($1,000.00), and in addition shall forfeit

his license to teach in any of the schools, institutions of

higher learning, or other educational institutions supported

whoily ‘or in part by public funds in this Staters All pen-

_alties cellected under the terms of this act shall be for-—

* warded to the State Treasurer to be placed by him in the:

common public school f und. i.

SECTION 6.. If’ any paragraph, sentence, clause,

phrase, or word. of this act shall he held to be uncoustitu-

tional for any reason, such holding: of unconstitutionality

shall not affect any other: portion of this act; nothing con-

tained herein, however, shall be construed so as to affect

the validity of any contract entered into prior to the-,

- @ ective date of this act. ;

SECTION 7. It is hereby determined that the decisions

of the United States Supreme Court in the school segrega-

tion cases require solution of a great variety of local public -

school problems of: considerable complexity immediately.

and which involve the health, safety and general welfare of E.

the people of the State of Arkansas, and that the purposeof §—

Yt \ 7 va j ‘ FZ E 129

this ‘act ix 10 assist in the

solution of these problems and

to provide for the nrore

ficient administration of public

- education. Therefore, an emergency is hereby declared to

|. exist, and this-aet being hecessary for the preservation of

| the publi¢ peace, heatth arid Safety, shall take effeet and

| be in force a, the date of its approval,

| APPROVED: SEPTEMBER 12, 1958

; ° tr, ae ; : .

| [fol 177] - oie : ;

[yj a 4. Bxpiee ae ial |

STATE OF ARKANSAS. “»:

OFFICE OF ATTORNEY GENERAL :

| COPY 3

ae | ,

Honorable George N. Anderson .

County Line School Dist. No, 1...

Branch, Arkansais .

_ Dear Mr, ‘Anderson:

This. will acknowledge your letter of May

cerning the affidavits as required by Act ]

the 1959 4 rkansas General Assembly,

18, 1959, con- ,

O and Act 30 of.

‘Tam of the opinion that the word (swe

! ar) may be stricken

“Outand the werd (affirmy Inav be gs

ubstituted in its place. .

~ Your very truly, a

Bruce Bexnerr

» Attorney General

é | Ail /8/ Buu J. Davis

a By: Bill J. Davis

: | Assistant Attorney Genera]

BID :jmh “ae ,

°

(fol. 178} Reporter’s and Clerk’s Cer

tificates to foregoing

transcript omitted in printing) '

.

136

{ fol. 180] ae .

‘hares [y THE SUPREME COURT OF ARKANSAS

No. 5-1978 7

Max Carr et all, Appellants,

Vv.

4 ¥ ’

R. A: Youna et al., Appellees,

fae -

Appeal: frem Pulaski Chancery Court, First Division;

Murray 0. Reed, Chancellor.

Affirmed.

¢

Opivion—February 8, 1960

Gerorce Rose Smiru, Associate Justice

George Rose Smith, J. This. case involves the validity

of the teacher-affidavit law, Act 10-of. the 1958 special ses-

sion. The apneai ‘is from a declaratory decree upholding

the statute. 5 Ser

Two suits were consolidated in the trial court. In one

the appellant Carr, an associfte professor of music at the

University of Arkansas, acting for himself and others .

‘similarly situated, sought a- decree declaring the act un

constitutional and enjoining its enforeemené by sthe defen-

dants, the president and trustees of the University. The

other ca#e is & similar class suit brought by the appellant -

Gephardt, a vocational printing instructor at Little Rock

Central High School, asking for liko~Felief against the

Little Rock Special School Distriet’and its superintendent

and directors,. Both plaintiffs assert that Act 10 infringes .

upn, their freedom of speech, freedom of assembly, 'free-

dom of association, freedom of thought, and allied rights,

all protected by the Fourteenth Amendment and by parallel

provisions in the Arkansas constitution,

.. Act 10 ®rovides that no person shali he emploved as a

- teacher in any of the state's public schools or as a super

_ &

131

intendent or ‘principal in any, elementary or secondary

. [fol. 181] sehool without having first filed with the employ-

ing authority an affidavit giving the naines and addresses

of all organizations and associations to Which the applicant

has belonged Within the ‘preceding five years or to which

he has paid regular dues or nade regular contributions

within that time. Other provisions of the ‘act nullify: any

contract made in Violation of ‘the statute, Permit the. re-

" covery of funds paid under such’a void contract, and fix ©

civil and criminal penalties for the willful filing of a. false

affidavit. ° . ia ear

The appellants’ attack upon the act may: be considered*

in two aspects: Iirst, is Act 10 unconstitutional on its

face?. Secondly, if the act. is outwardly valid, does the:

“record show that the-statute was intended to be applied,

and will in fact he applied, in such a Way as to deprive the

appellants and those they represent of their constitutional.

> rights? - . -

We do not find Act To to be invalid ‘on its face. By §1

of the act the legislature declared its belief that the publie

_. School s¥stem would be benefited as a result of the school

', authorities having the required information about appli-

cants for tife positions covered by the statute. I’ cannot

be doubted that the information would often be of real

value to the employing school hoard. We are not convinced

‘Bat either the federal or the ‘state constitution compels a

school board to engage its teachers Without first inquiring

about the matters that the act requires to be disclosed,

A similar question Was presented long ago, in UecAuliffe

Vv. Vew Bedford, 155 Mass. 216, 29 NLE. O17, where a police-

man complained of a «ty regulation that prohibited him

from soliciting money or’ aid for. political. purposes, In

the familiar words of Justice Holmes: “The petitioner

may have a constitutional right to talk polities, but he has

- HO constitutional right to be a policeman. . . + the city-may

pose any reasonable condition upon holding offices Within

its contro},” ¥,

(fol. 182] The appellants are not entitled to demand that.

the University and the Little Rock school board -e iploy

them without making any inquiry about organizations to

Which they have belonged within-a period reasonably ¢ ose

132

N\

to the date of the seplination. Sueh inredtilgetions are

', the usual practice among private amployers, and, as the

court pointed out in Garner v. Board of Public Works of

Los Angeles, 341 U.S. 716; public eraployers are’ not de-

nied the privilege of making similaf inquiries. From that

. opinion: “We think that a municipal employer is not dis-

abled because it is an agency: of: the State from inquiring

of its employees as to matters tliat may gee relevant

. to their fitness and suitability for the publik service. Past

conduct may well relate to present fitwéss; past Jeyalty

may have a reasonable relationship to present and future

trust. Both are commonly inquired into in determining

fitness for both high and low positions in private industry _

aml aré not less relevant in: public cunploy ment. The afi-

davit requirement is valid.”

The prima facte validity of Act 10 is pretty well settled

by the holding in Adler v. Board of Education of New ,

York, 342 U.S. 485, where the court sustained a state

statute forbidding the: employment in the public school

system of persons belonging to organizations found to be

subversive. ' This language in the opinion is peculiarly

pertinent to the case.at bar:

sca . . y

A teacher works in a sensi B ve area in a schoolroom.

There hé shapes the attitude f young minds towards the

society in which they live. In this, the state has a vital

concern. [t 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 a part of

ordered ‘society, cannot be doubted. One’s ‘associates, past

and present, as well as’ one’s conduct, may properly be

considered in determining fitness and loyalty. From timé

[ fol. 183 | immemorial], one’s reputation has been’ deter-

mined in part by the cgmpany he keeps. In the employ-

ment of officials and teachers of the school system, the

state may very. properly inquire: into the company they

keep, and we know of no rule, constitutional or otherwise,

that prevents the state, when determining the fitness and

loyalty .of such persons, from considering the organiza-

tions and persons with whom they associate.”

ee 133

“In the Adler case the statute Was directed only at sub-

‘ version, but the eourt’s language dealt repeatedly with

fitness as well as with loyalty. We haye no doubt that a

school board might ask an applicant whether he belonged,

specifically, to the Communist ‘Party, to any organization

dedicated to the violent overthrow of the government, to

a nudist cdlony, to a drag-racing club, to an association of |

atheists, or to other organizations that might be-listed al-

most without number, membership in which x. ght shed light:

upon the applicant’s fitness to guide voung minds in the

‘schoolroom. We -are not persuaded that the ‘constitution

compels the board to ask scores or hundreds of permissible

questions. one by one, instead. of making the blanket in-

quiry required by Act 10.

We conclude, as did the three“judge district court. in

Shelton vy, MeWinley, D.C. Ark., 174 F. Supp. 351, that the

act is not unconstitutional on its face. We do not, of

course, pass upon the wisdom of the law, for as the court

said in, the Shelton ase - “We think that the information’

required by Act 10 ss relevant. The fact that some ed-

ueators and members of the public may feel that this re-

quirement is unwise, or unnecessary or even insulting does

not mean that the statute js unconstitutional. Those are

considerations of the, legislative, not the Judicial branch

vf the govérnment.” ;

There remains the contention that Act 10, even if os-

tensibly valid, is subject to being used in an “unconstitu-

(fol. 184] tional manner. Upon this point the appellants

offered three witnesses, Two of them, the Attorney Gen-

eral, whose office assisted in the drafting of the hill; and

.the state senator who introduced ‘the measure in the legis-

lature, testified that the act-was. intended .28 @ Weapon

against subversion. “Such expressions of individual opinion

are not competent to show the legislative intention, Wise-

man v. Madison Cadillac: Co.,.191 Ark, 1021, 88 S.W, 24

1007, but even if the testimony were considered it would

not create any doubt about the validity of the act.

The appellants’ third witness, Guthridge, testified that

le was a director of, and ‘attorney for, the Capital Citizens

Council, which he describes as an organization advocating

‘tates rights and racial integrity and opposing by all law. -

. ful means the desegregation decisions of the United States ,

ae

134 *

Supreme Court. Guthridge Was- interrogated by the ap.

—“pethartsconsrt about Hews paperaecotnts-of thle state

nents he had made concerning Act 10, In those stati ‘nents,

* which Guthridge reaffirmed on the witness stand, he said .

that hit organization and similar ones in the state meant

to attempt to gain access to some of the Act 10 affidavits

With a view to seeking to eliminate from the school system

teachers who belonged or contributed td the NAACP,

the Urban League, and other organizations opposed ‘by the

Citizens Councils. : re

We do not think this testimony sufficient to show that

the act will be. applied- by the state and its agencies in

such a way as ‘to violate the appellants’ constitutional

rights. In reaching this conclusion we are not unmindful

of the settled printiple that a statute, even though ‘fair on

its face, may hecome invalid if it is administered by the

state “with an evil eve and an unequal hand.” Vick. We

v. Hopkins, 118 U.S. 356.

Here, however, the proof docs not’ show any inclination

“on the part of any school buard*to use Act 10 ina dis- .

criminatory manner. The most that can be said is that at.

(fol. 185] least some wembers of the Citizens Councils are

so ill-advised-as to advocate that course. “Tli-advised” is

the proper term, since such an effort, if shecessful, would.

defeat its own purpose by rendering the act invalid.

It is very far from certain that efforts to misuse Aet 10. -

if any are made, will succeed. Inasmuch as the validity

of the act depends upon its being construed as a bona fide

legislative effort to provide school boards with needed in-

' formation, it: necessarily follows that. the affidavits need

not be opened to. public. inspection, for the permissible —

_ purpose of the statute is-to enlighten the schoot board

alone. The only testimony on this point indicates that the

affidavits are not being publicized: :the president of the

University testified that its affidavits are being treated as.

confidential and are being kept unger lock and key.

Moreover, even if secrevy should not be observed in every

instance’ it still cannot be surely predicted that any teacher

will be eliminated from the school system. Unlike the

statute upheld in the Adler case, supfa, which mandatorily

forbade the employment of persons belonging to subver-

135

a school board to take any dction, no matte

tions an affidavit may reveal. Thus in order for us to in-

validate Act 10 at this stage of its eXistence we should

have to assume, wholly without proof, that ‘conscientious

and responsible schoo! board members yil] inevitably vield

to a nebrlous public insistence. that the act he applied dix

criminatorily and jn disregard of recognized constitutional:

guaranties. We are aware of no principle that requires

ls to attribute improper motives to

means of enabling us to-declare an act- invalid.

Affirmed.”

r what associa-

(fol. 186] .

IN THE Supreme CouRT or ARKANSAS’

Max Carr, et al., Appellants;

ie vs.

: R. A. Young, et al., Appellees,

: Appeal from Pulaski Chanicery 4 ourt, First Division.

oe |

’

—_—_—_—_————,

,

J UDGMENT—F ebruary 8, 1960

This cause came on to be heard upon the tra

‘

nscript of °

the record of the chancery court of Pulaski County, First

Jivision, and was argued by solicitors: on consideration

Whereof it is the opinion of the Court that there is no error

in the Proceedings and decree of said chancery coui‘ in

this cause,

“It is therefore ordered and decreed by the Court that

the decree. of said chancery court in this cause.be and the

, Same is hereby in all things affirined with costs,

It is further ordered and decreed that said. appellees re-

Cover of said appellants all their costs in this Court, j

this cause expended, and have execution thereof,

February 8, 1960,

n

sive organizations, Act_10 docs net—affirmatively require >

public officers ge ;

[ fol. 187 } | File endorsement t omitted)

leTrHEe SupREME Court oF ARKANSAS

_ Pulaski Chy., Ist Div.

No, 5.1978

Max Cakk et .al., Appeilants,

v.

R. A. Youne et al., Appellees.

Petition ror ReHearinc—Filed February 16, 1960 —

Petitioners move that the Court grant a rehearing in

‘captioned cause for the following reason:

The opirion is bottomed upon the erronedus premise

that so long as no direct discriminatory action by pubiic

officials is based upon the compelled disclosure of associa-

tions required by Act 10, that First and Fourteenth, Amend:

ment rights of petitioners are not violated. The resultant

interplay of governinental and private action set in motion

by Act 10, in successfully dissuading teachers from ex-

ercising their constitutional rights, or making them targets

of abuse if they do, through the publicity made possible

by the Act, is ignoréd by the Court. r

+ Edwin E. Dunaway, Solicitor for Appellants.

_Brier.is Support or Petition

The admirable admonition contained i in ihe Court's

opinion against the use of Act 10 for the purpose for. whieh

it was enacted does not alter the fact that the Aét makes

no requirement that the information in the affidavits be

(fol. 188] treated as confidential. There is, consequently.

provided by Act 10, with no necessity to justify it, the

means by which teachers are subjected to the immediate

possibility of publication of their past and present associa:

tions.

tT he United- States cisions Court recognized i in VA. {CP

. dlabama, 357 U.S. 449, 78 S.Ct. 1163, at p. 1172, -

137.

e

Stel publication “must be regarded as entailing thy likeli.

hood of a substantia] restraint upon thie exercise by peti.

honer’s members of their righ@% Freedony of &ssoclation,”

That court then answered this Court's argument. that

Whatever repressitie effect resulted from compelled dis.

__tlosuretollows from private, not State action. “The crucial

factor is the inte; ilay of governmental and private action,

for it is only aftes the initial eXETCise Of state power repre-

sented by the Production order that private action takes

hold,” said the court at p. 1972. ; .

In Watkins y. United States, 354 U.S. 178, 27 S.Ct. 1173,

at p. 1184, the United States Supreme Court also recognized

the constitutional eyi] of unnecessary: forced, revelations

sabout possibly unpopular associations aid the resultant

deterrent effect upon one’s exercising constitutional rights.

CERTIFICATE cs

The undersigned counse] for petitioners certifies that he

‘believes there is merit in the Petition-and it-is hot filed for «

the purpose of delay. Copies have been served upon Op-

posing. counsel] by mailing same on February 16, 1960. .

Edwin &. Dunaway

af 7 ca ee eT |

fol. 189] oe Woes

Ix THE SUPREME COURT or ARKANSags

No..5-1978 anes

Max Carr, et al, Appellants,

cs

R. A. Youna, et al, Appellees,

: -

ORDER DENYING PETITION FOR Renearing—

February 29, 1960

oe denied. | tee tS

: February 29, 1960.:

eee in printing).

(fol..190] Clerk’s Certificate — to. foregoing _ transcript

. : yt

138

' [fol. 191] |

_ Supreme. Court OF THE Unirep States

| No. 917, October Term, 1959

° : — 7 oak

* Max Carr, et al., Petitioners,

* Ta, ;

(-, J A. Youne, ota

. Orver ALLowine Certiorari—June. 20, 1960

The petition herein for a writ of certiorari: ‘to the Su.

preme Court of thé State of Arkansas is.granted. The

case. is set for argument immediately following No. 541 ~-

a Oe. ° . ° =

Each case is allotted one hour and thirty minutes for-ofal

argument. . site

—

And it is further ordered that the duly certified copy of

the transcript of the proceedings below which accompanied

the petition shall be treated as though filed in- response to

such writ.

?