Appellees Brief — Baggett v. Bullitt (No. 220)

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Fn the je Supreme Court 0

Office-Supreme. Court, U.S.

Tt. tie Ee ; FI L-E D

MAR 2 1964

N F. DAVIS, CLERK

Anited States © ve wee

Octoser:. TERM, 1963

0 <<

No. 220

a ?

LAWRENCE W. Baccetr, Rocky Baus, Z. W. Branzaum, Joost -

E. Businger, IsaspeL S. Caro, GIOvANNT Costican, J. G. Das,

Writiam A. Dawson, Jay Patrick DonALEY Davip M. Eyes, aa

JoHN -M. EMLEM, T. SAUNDERS ENGLISH, VICTOR “ERLICH, ow Bihe

Rosert G: FLEAGLE, RoNALD GEBALLE, Patrick T, GoLps-

. wortHy, Mitton P. Gorpon, Atvin D. GREENBERG, Rogtrt E..

- GREENGO, GORDON GRIFFITHS,

HALPERN, ARNOLD HANSON,

W. Mary ‘ Guirritus, Isaac

W. Sturt Hort, ABRAHAM C.°

[KKELLer,* ARTHUR L. KosLeER, Scotr LyYTLe, R6BERT W. Mac-

DonaLp, -D. -F. Macee, HENRY W. Mater, WILLIAM H.

Matcuett, Kart P. Mauzey, Trevor J. McMrnn,¢ Irvin

MriLowE, Roserta Mitowr, Wayne C. M , RHOADS

MURPHEY, Davin S. NEwMan, Howarb- Nostrand, Gorpon H.

ORIANS, Srmon OTTENBERG, JACK ‘R. Punscwe? EuGene C.

PizzuTo, MELVIN RapeEx, KENNETH Eyre Reap, Max SAVELLE,

Annick Smi7Tu, C. A. VALENTINE; LesLig WARNER, JAMES B.

. Watson, WALrTer B. Watson,

. W. Wricox, WiItiiaAM, B.. Wootr, PAu. DIETRICHSON, JON

Puitie E. WiLcox, THEODORE

BricMan, Boris A. JacopsouNn, Patricia J. KELLER, Lucite

L. Curtss, Apert Nusennuis; Ricnarp Morriit, WILLIS

WILLIS,

Konick, Rosert G. CLARKE, ‘THeopore LANE, Appellants,

‘ v. ¥

Donoriy BuLurrr, JOSEPH — DRUMHELLER, JOHN -L. KING, :

_ Hereert S. Livre, E. A. ADDINGTON, “JOHN J. O'CONNELL, -

‘ CHARLES E.. ODEGAARD, HAROLD > SHEFELMAN, Rosert- J.

Appellees.

On Dmect APPEAL FROM-THE FINAL Ofper OF A- THREE-JUDGE’

Untrep States District: Court Srrrinc IN THE WESTERN

DISTRICT OF WASHINGTON; ~ NORTHERN Division

- BRIEF OF APPELLEES. oy

Office and Post Office Aiddress: ‘Remple of Justice, Olympia, Wash.

“2

° o .

JOHN J.0’ CONNELL,

HERBERT H. FULLER, ,

- Attorney ; -General,

Deputy Attorney Genehal,

DEAN A. FLOYD, =

Assistant Attorney General, y

“Attorneys for Appellees.

* "

le eae Data OCTOBER Term, 1963 ”

o = In the. Suprene Court of fthe

\ - Gnitede States

_ F a ‘

No. 220 aL sree

~ Lawrence. Ww. sammie Rocky Bauer, Z. W. Samnatend. Joost

’ FE. Busrncer, Isaset’S. Caro, GIovANNT Costican, J. G. DAsu,-

Wintram A. Dawson, Jay Patrick DONALEY, Davin M. Eaves,

JoHun M. EMLEM, T. ‘SAUNDERS ENGLISH, “Victor ERLICH,

Rosert G. FLeacie, Ronatp ‘GEBALLE, PATRICK ei Gotps-

wortuy, Mitton P. Gorpon, ALvEN D.’ GREENBERG, Ropert FE.

GREENGO,’ GoRDON GRIFFITHS, W.:. Mary .GRIFFITHS, ISAAC

“HALPERN, ARNOLD Hanson, W. Stutt. Hort, ApraHam C.

a Keven, Artuur L.-Kopsier, Scorr Lwtie, Rogerr W. Mac-

-» Donan, D. ‘F. Macer, Henry OV; Marer, Writiam =H.

.MatcHETT, Kari P:+Mauzey, »TREVon J. McMinn, IRVIN .-

.« Mrrowe, Roperta -‘Mitowr, Wayne G. MuLLEeR, Ruoaps

. Murpuey, Davin S, NEwMaAn, Howarp Nostranp, GorDON H.

Orrans, Smm6n Orrenserc, Jack R. - Parsons, Eucene C.

Pizzuto, Metvin Raper, Kennet Eyre Reap, Max SAvELLE,

ANNICK SmoiTH, C. A. VALENTINE, LESLIE. WARNER, ‘JAMES B.

WaTsSon, WALTER B. Warsonr Puiuip E. Witcox, THEODORE '

-W. Wicex, Wituiam B.” Wootr, Pau: Dietricuson, Jon.

Brincman, Boris A. Jacossonn, Patricia J. KeELLer, LucIue

L. Curtis,. ALBERT NUJENHUIS, RicHARD MorriLi, - WILLIS

KONICK,- Ropert G. CLARKE, THEODORE LANE, Appellants,

Za z

pide Buuuitr, Joserx DRUMHELLER, JOHN L. Kina,

Hersernt S. Lrrtite, K. A. Appincton, Joun J. O'CONNELL,

Cuaries E. OREGAARD, Haroip S. SHEFELMAN, Roerrr J.

WILLS, : _ Appellees.

On Drescr APPEAL FROM THE’ FINAL ORDER OF A THREE-J2'DGE

. Unitep States District Court SrittrnG IN THE WESTERN

NS. Drsrrict OF ET, NORTHERN DIVISION

BRIEF OF APPELLEES

JOHN J:.Q’ onenty

Attarney Genergl,.

HERBERT’ H. FULLER,

Deputy Attoyney y Ge ne ral

aie A $ _DEAN A. FLoyp,

27 + + Attorneys for Appellees.

** | Office and Post Office Address: 1 Temple of Justice, Olympia, Wash.

: ” .

-" " SUBJECT INDEX Ree

~ INTRODUCTION sa ehd-whains Giese ae ag teal ie seen aa Wasa’

PART I, ADINTIONS. AND CORRECTIONS TO EM- |

PLOYEES’ STATEMENT OF THE CASE...... 10

le ve Statutes and Litigation Relating to Papeetnive Ac- ,

1 ees. . . tivities Since World’ War Il........... eras

) A. Statutes ...... TRL ge fe, epanaee Pn See

uy B. Prior Litigation CEN See Bers vac ie

cee SY | BIG aie Sie ae Mi ievsecceseces A

‘D. The. “Refusal” to Sign. aa : reas ey pee C tp ST

a 4 The Employees .. 5.0.0.5... 00 i eo a ee 19

PART II. SUMMARY OF ARGUMENT... en

ee PART-II. THE 1951. ACT, AND THE PORTION OF

hl Bray teeny THE OATH BASED THEREON, ARE NOT PROP- re

ERLY BEFORE THIS. COURT..... Aare eens tee 26

‘2 | ‘ PART IV. THERE ISNO ACTUAL CONTROVERSY\.

ee? / The Disclaimer Oath... Desay eG tae ede ke wake ce \.. 0

Ree - The 1931 Oath.......:..... SA hile beregey oes ke Fo hates \ng 34

jue PART V. THE 1855 ACT AND THE 1931 act DO NOT

Sie VIOLATE THE FIRST AMENDMENT,........ 35

The Case Law Is Overwhelming to the Efecl that.

? ‘ the Disclaimer Provision of the 1955 Act Does ,

‘Not Violate the First Amendment........... MBS

The 1931 ActDoes Not. Violate the First sais 41

The 1955 Act Is Not an Unconstitutional Prior '

MI et Fas i ede is Se eeaG kates es ‘41

~~ ., . The Oaths Do Not Violate the’ First Amendment

: _ Gyarantees on Réligion,...;...........4..: +. 45\

ye } - The Interest to Be Protected is Substantial. Pave eet Mt i Raa

: PART VI. THE 1955 ACT AND THE 1931 ACT DO NOT *)

Baste ae VIOLATE THE FOURTEENTH AMENDMENT. 50

' The Employees Who Refuse ¢o Sign the Disclaimer .

- * Oath Are’ Probably Entitled to a Hearing....... 50

Whether an Employee. Who Refuses to Sign the 1931

_ Oath Would-be Entitled to a Hearing is a Matter

SME RNS franc cai ccdes a 58

The 1955 Act Does Not Violate. Constitutional Guar-

Leu

: The 1931 Act Does Not Violate eran

antees as tq Vagueness... Ee Sy Aree p> oh Gee om 67

'. antees as to Vagueness........°)..:.....50 08.6. 58

o.-

The -1955 Oath Requirement Does Not Constitute a.

Bn A) ONIN 76 ou bn a Gnu bi cuss io 0ks ewes ys

There Has Been No Pre-emption of the 1955 Act... 77

‘The 1955 Act Does Not Require Self-Incrimination. . “7

The District Court was -Correct in Dismissing. Em- °

ployees’ Complaint With Prejudice:...........

The District Court Was Correet in Dismissing the

“students ....... te a Ss saan Delia oe ee aoe ae 81

CONCLUSION LUE Faeiay ee dade ce Cue Re | Se ORS,

TABLE oF AUTHORITIES. CITED

eee 6:

Piste Vv. California, 332 U. S. peices ea EO Ste Fe 80

“Adler, v. Board of Education, 342 U.S. 485....2........2.

ee EE oe ge 5 aE, -22, 32,33, 35, 37, 39, 48

American: epee: Assn. v. Douds, 339, U. S. 382 -

Nard Ste ok Pe ee ka aie es "....22, 27,44, 48, 57, 61, 69, 7

4 Arkansas Fuel Oil Co. v. La. éxrel. Muslow, 304 U.S. 197. 2

Barenblatt v. United States, 360 U.S. 109.....:,%...2..: . 40

Bates v: Little Rock, ie) ere FeO ere

Beilan v. Board of Education; 357 U.S. .

SVs WEEE vote So boels o whens Weta 21, 22, 36, 37, 39, 40, 80

Board of Gonsenors of Federal Reserve System v.-Agnew,

- $29 U. S: 441...... see Ve teata ey wy et irs «swe ee ue

Braden v. United States, 365 U.S 431..........0...... ae AS ae

Bridges v. California, 314 U. S. 252... .... “Cnn eae ee

Bryant v, Zimmerman, 278 U. eee bee 36

Cafeteria Workers v. McElroy, RE RRs ccs; 57

Carr Woung,-364 U" 5, 479.034.200.050... 000 0a BA

-Cohen v. Hurley, 366 U. "S. REP facia s Oak son Seles Sue cas tee

- Communist Party’v. Subv ersive Activities Control Hoard,

EE, Ba Seder, Apna: Oem «Meme 42°47, 48, 80

Corwin Investment Co. v. White, 166 Wash. 195,” 6 PB

BRR ree: eee « ce enact k ewe ee 29

- Cramp v. Flerida, 363 U.S. 278 pibiciewesweess 16, 23,-58, 59, 65

Cummings \ v. Missouri, 71 U.S. (4 Wall.) 277..... Oe aay 73

’ Daniel v. Family Security Life Ins. Co., 336 U. S.220....73, 82

ae. United mega si oh ee ateads :27, 60 .

Page _~

PART. Vil,” OTHER CONTENTIONS OF EMPLOYEES. ke en

73...

s oa oer

TABLE OF AUTHORITIES CITED—Continuedl

) CASES:

ai, Ex parte Garland, 71 U.S. (4 Walls 3, 4, 4 ee ee es ee

", Fox v. Washington, 236 U. S. ee ine ptcsvgs MNES. > »

Garner v. Board of Public Works, $41.0. S. 116... <5, 5

WaRMES E Te Ee on ery ee 21, 22, 36, 37, 44, 48, 61, 69, 73, 16

Gerende v. Board of Supervisor of Elections, 341.U. S. 56 |» crt

(2S Saw pie 4 RE aes SMT RRR b Vigevapene ere Fee 36, 56, 69, 86

Gitlow v. New York, 268 U.S. 652....5 0:0... .scceeeecees 61 !

~Gnecchi v. State of Washingtan, #8 Wn. (2d) 467, 364

, ER) Oe bind ss bbw rid CRRbien «eG me pues oak vine 4 adage) my;

Household Finance Corporation v. State of Washington,

i Wn. (2d) 451,244 PF. (2d) 260......... Perr 62

- Inre Anastaplo, 366, U. S. ei. aye ae err eT 39, 80

In re Christensen, No. 34575, Thurston County Superior’

Court, State of Washington\...0............0.. wea OO

* Jordan v. DeGeorge, 341 U.S. 223. Ngee. vile

Konigsberg, v- California, 353 U. S, 252.°..%.:. RPO R AS Fe

Konigsberg v. California, 366 Us'S..36....”. bviyencs aces

Lanzetta v.*New Jersey, 306 U. S. | 7 See means BS nee ee

Lernér ¥. Casey, 357-U. S.-468.!...... cnwen a oetis ue 80

Martin Vv: Creasy; 360 U. S. ia eels ‘etic

McNeal v. Culver, 365 UW. S. 190.....:......5....2 er ry Site le

- National Assn. for: Advancement of Colored’ Peasla 4:

‘Alabama, 357 U. ce Pee ee ee Pas oe ee 35, 36, 42

‘New York Rapid’ Transit Corp. ycCity of New Tomes

303 U.S. 573..... Wien ded Wark se ilond Kose Bed ea oka eke 73

North Bend Stage’ Line’ v. Dept. of Public Works, 170.

: We AE Sp Re Be: AED Ea i c's cag eS ea eck 29

Nostrand Vv. Balmer, 33 Wn. (2d) 460, 335 P. (2a)* DD ria

sie aS, GMa TU Nene y ees *..11, 14; 16, 30,75, 79

- Nostrand: v. Little, 58 Wn. (2d),111, 361 P. (2d) ) eed ;

eH tba hake nwa aag eh Chaban woiake oo lee id, 30, 31, 32, 51, 92, 57, 98

Nostrand v. Little, 362 U.S. 474. Facog Ape Ve rwsiem en 14, 80

Nostrani v. Little, 368 U. S: 436y.......... STG sas 14,80

Noto y United States, 367 U.S..290... 2.02. eee. 27 -

Pepnsylvania v. ‘Nelgon, 330 U. Hh: Soperabesaerar 3, «2. Hay

eri) ; / :

‘ /

TABLE. OF AUTHORITIES. CITED—Continued

CASES

: Page =

; Phillips Chemical Cor v. Dumas ‘Ind. Sch. : 361° ;

| We So STB... tae gee ee asec cece cater eee thee en sneien a

- Poe v: Uliman, 367 U. S. 497...... WROsE. © da euSe none ke « BY":

Re Siutnmers, 325 U.S. 561.0... 000.0. cece eevee eels 22) 46

Scales v. United States, 367 U.S. 203....... pomegeey vs oe

: Ghelley v. Kraemer, 334 U.S. 1...... ” eye. ee ee ta vref 28,

. Shelton v. Tucker, 364 U. 8. MMi e's déce bo 22, 34, 39, 41,42,43.

> v. Simpéon, 196 Md. 177,-76-A. (2d) 322, 340 U.S. 86159.

huttlesworth Vv. Birmingham Board of Education, 358

Se Fe TG UR SO POL Rema arias EMRE Mh (Beret he, Cut Re Be 63

State v. McCarthy; 38'N. W: (2d) 679, (255 Wis. 234)... . 67, 68

State v. Wallis, 50 Wn. (2d) "350, 311 P_,(24)/ 659"... \66

3 Stromberg v. Calif., 283 U. S. B59. Fei SPEER A P 62 :

Sweezy v. New Hampshire, $54 U. ‘S. 234. :..25, 37; 38, 42,77 |

Times Film Cerporation v. Chicago, 365 U. S, 43. LT OPHRS 42

Twining » New Jersey, 211 U. S. Me eg es: aks 80

- United Gas Pipe Line Co. y. Ideal Cement Co., 369 U.S.

1340.5, rer: eet | een ce of 56, ais

United Pubtic Workers. v. Mitchell, 330 U.S. 75.. | ..35, 37, 56 |

United States v. Lovett, 328 U. S. WR 46 i .73, 74, 75, 76, 77 ,

United States v. Johnson, 319 U. S. 302 ere ees Pes 81//.

United States v. Spector, 343 U.S. 169. Gah ape aks hae are

, Uphaus v. Wyman, 360 U..S. 72-..)0.....; ore 77,78

Weiman v: Updegraff; 344 U! OE pone eee xe -1 +13, 16 -

"West Virginia State Board: of ,Sducation v. Barnette,

iser v. Randall, 357 U. Ss 513. Si eine 17, 21, 24, 41, 42, 69, 70 .

319 U. OM Gtk s Ue Narr ue cakes ht ae 2i, 41, 47

e “ ¢ ¢

Whitney v. California’ 274 U.4s. 357. adc y eee 0 Ol:

-Wilkinsog ' v- United States, 365 U. S. 399. Fania ieigs 40

Winters ve New York, 333 U. S. 507.0 0...00..0.0.. MNS 2

_ Wong Yang Sung v. McGrath, 339 U. S. 33. POT Y res

Yates v. United States, 354 U.S. 298 es a FA el ee ae eee AE

- ; : a : ‘ ‘ ° e '

a si |

_ WASHINGTON STATUTES, pee

& Paget

Laws of 1919, Chapter ARDS ewaeenees oie Pace iting ae

at ae pepe ee ar Lata ees Weta Sh Emaar he %

Laws of 1931, Chapter 103 “ae Pikah die wbase bihesch new aki

‘10, 19, 21, 22, 24, 25, 34, 35, 58, 67, 68. 69,.70, 72, 80

e ' Chapter 119 ..... AS LA eile ESSE

Laws’ of 1947, ‘Chapter’ MET nv iceneveicetanve ds Sah hev a an

Section 2, p. 1334... /.. ces saccade cudnt SRR 5 ae

PB. 1378... 6.6... eee. cyte he Puaea weber SE

_ Laws of 1949, Chapter 32 ......, ee egtivdieey cheick tes nS a 72 :

Laws of 1951, Chapter 254... PSEA pg ee ia teascdot es |

rede 10, 12, 15, 16, 20, 26, 27, 28, 29, 30, 31, 41, 35, 50, 62.

/ SOCRIO BE a ctavees pee iaveunaewncie | tere Meceie 16

ee a 2 ree ao hv das Saale es 10, 16, 43

DG oe ercrye tn ee CE ee ee SAE. 3 etc ds ce

. Segtion. 19 ......... Aiea tect et arnantens we tees 63

{ Leeeg: of ORE, Chapter $48 6.550 ike de hee cans. 13, 16

Laws of 1955, Chapter 377 ..... Pemba ..10, ‘nn, 13,14, 15,

16, 19; 20, 22, 23, 25) 26; 27, 28, 29, 30, 31, 35, 37, 39, 41,

Bir

e dt GER ASP ROSE Brak lyeieheh cp Puccad wating sia e-a Meee

oy Sertide @ 323 es Teel aS NOR AE I 348 fi 57

Laws of 1959, Chaptér 234 eiges eeiyge erection: 23, Bz, 45, 58 ,

_ Laws. of 1961, ‘Chapter 1 Soba eS ad ea Ra Ne 23, 52, 48 Re

_ Section a APES bk ee vb 4 yh poets Fae

Sections 18, 19, 20, aha au: Beets tpg ta fae BS 54...

Chapter 18.85, kevised. Code’ ‘of. Washington. afar Doe pes Sec nees < es Veet

Revised Code of Washington | 942.019 et’seq..0..<7..... QL

Revised Code of Washington, . 981. 010(3). Eo Cito TS,

Revised Code of Washington . "981. 010(5 ye. Sesh f tien exes . 66

ix Revised Code of Washington ‘9. i. rere, reper p

_ Rev ised: Code of Washington’ 28, 67.010 et seq. re wy ate >

Revised Code of Washington 28.67.020 /, 6.000.605.0005. va

Revised Code of Wasisington 28.70. 150 et seq EE ANG 5 10, 34

Revised Code of Washington BAT... Novel Poi ie

“Revised Code6f Washi ngton. 28. 77. 130. (tRp Bray es Bans ee 2,32

; :

' te L@. s

~ ‘

2 5 - Coe es?

UNITED: kh ES CONSTITUTION

. " United ter: Constitution, ye Amendment. ede tele ce

" Unite States Constit ytioti Vouttnendbs Ahendiient. rene.

itt SOR et eee we nt ae eaae ‘YT, 21, 22, 25, 40, 63

M ISCELLANEOUS

_ Laws of Maryland, 1949, Chapter 86, 1949 Anno. Code of

Md, Article 35A....... VEEN Sob es cvek UE bs eae ONS 12,59"

S ‘ond Report “Un-American Actietias: in Washington

: (1948) Gh eck mewesdenren 140 Miley 40 «canst ius 11, 22, 47, 48

‘Senate Bills 368, 378, 356 (Washington) .-........0... 6. 12

hate Journal, 1955, Dp. 34 (Washington) in Wis o UE ch eh 13

Ss winks, OE Valet Jour. 190080) vi. i occ eM 15

54 Stat. 671, 18 U.S.C. 2385 (Supp.) (Smith Act)....... 59, 60

8h Stat. 146, Chapter 120..... 0.0.68. Tee te akc ee

| Sutherland, Statutory “Construction, 442 § 1937, 3rd.

ed. BOGS ie eek oe Sh Wecuee rate Sihits rege arse t a

INO Noo tes i Bievig codosonies) indan ee MOS

In the Supreme Court of hie

- United States

OcToOBER TERM, 1963

No. 220

r) Cavan W: Baccett, Rocky BAvER, Z. W. Buweavm, Jian “

E. Busincer, Isapet S. Caro, Giovanni Costican, J. G, Dasu,.

@iciraM A. Dawson, Jay PATRICK Dona.ey, Davin M. “EAVES,

Joun M. .EMitrem, T. Saunpers Engiisu, Victor ER IcH,

Ropert G.: FLEAGLE, Rowaip GeSsALLE, Patrick T. Go.ps-

* wortHy, Mitroxn P. Gorpon, ALVIN D. GREENBERG, Rosert E.

-GREENGO, Gordon GarirFITHs, W. Mary GRIFFITHS, IsaAc

Hapern, ARNOLD Hanson, W. Stvutt Horr, ABRAHAM te

KELLER, ARTHUR L.~ KosLer, Scorr Lytie, Rosert W. Mac-

Donato, 9. F. Macee, HENRY W. MAIER WitutiAM =H.

Matcuett, Kart - P. .Mauzey, ‘Trevor J. McMinn, Irviz:

MILOWE, ROBERTA. Mitowe. Wayne. C. Mutter, Ruoaps

MuRPHEY, Davip Ss NEWMAN, Howarp NosTrRanD, Gorpon H.

@ORIANS, SIMON Orrenserc, Jack R. Parsons, EvGENE’ C.

Pizzuto:; Meivin Raper, KENNETH Eyre Reap, Max SAVELLE,

ANNICK SMITH: C. A» VALENTINE, LESLIE WARNER, JAMEs B. a

‘Watson, Watter B. Watson, Purip E. Witcox; THEopoRE™

W. Witcox, Witt1AM B. Woo.tr, Paut DIetTrRIcHson, JON

BripGMan, Boris A. JACOBSON, Parricta J. KELLER, LUCILLE

L. Curtis; ALBERT NUJENHUIS, RICHARD Morritt, WILLIS

Konick, Ropert G.CLARKE, THEODORE Pane, Appellants,

Vv. 5 ’

Dorotuy Buuurrr, JosEPH DRUMHELLER, JOHN L. KING,

Hersert S. LITTLE, E._A- Appincton, Joun. J. ‘oe

“CHarRtes’ E. -OpEGAARD, Haroup S. SHEFELMAN* . Bye Bl

WILLIs, arg : fet Appellees

_ On Direct APPEAL FROM THE’ FINAL ORDER OF A THREE-JUDGE

Unitep States.:Districr Court SITTING IN THE WESTERN

‘District OF WASHINGTON, NORTHERN IN Division

BRIEF OF APPELLEES

ee INTRODUCTION

-( For conv enience, appellants shall be called “Em-

Sioveen* For the same reason appellees shall be °

called ‘Regents’, even though they include, in

addition,.the President of the University of Wash-

ington aad the Attorney General. The duty of the

Attorney. General i is to defend legislative enactments

against -attack on grounds of uncbnstitutionality: ”

| The statutory duty of the Regents is to administer —

‘the legislative enactments in question. — ‘

' The term “1931 oath” refers to the oath re- —

- quired by chapter 103, Laws of the State of Wash-

ington °1931. (Cf. RCW 28.70.150 et seq.) “Dis-

claimer oath” or “1955 oath requirement” refers to _

the oath required by section 12, chapter 254, Laws

_ of the State of Washington 1951, as amended by.

| chapter 377, Laws of the State of Washington 1955.

" . (Cf. RCW 9.81.070) “Subversive Activities Act”

refers to t the 1951 act, as twice: e-amended. :

PART 1

ADDITIONS AND: CORRECTIONS TO.

_ EMPLOYEES’ STATEMENT OF

- « THE CASE |

It is necessary to deal, in this section, with. the

statutes enacted, and litigation relating to subversive

activities arising since World War II, the 1955 oath, —

the “refusal” of Employees to sign the. oaths. and

with the legal status of the Employees. :

STATUTES AND LITIGATION RELATING TO i

SUBVERSIVE ACTIVITIES SINCE

- *WORLD-WAR II

| A: STATUTES .. =. *

It is necessary to consider chronologically: the

‘statutes and the litigation involving subversive ‘ac-.

tivities since World War' II. Chapter 377, Laws of

2 A 11 "© .

_ 1955 cannot be viewed in a vacuum. It is amenda-

- «tory and it is only one of a number of acts passed over

a- period of yeqrs since World War II. It is necessary

to. examine thése other atts as well and to eonsider se

| their legislative background. ( See Nostrand v.

_ Balmer, 53 Wn, (2d) 460, 335 P. (2a) ‘10, at p. 465°

vet seq. )s | A

In 1947 the ladtalainioe passed the first of. these

measures. (Laws of 1947, chapter 287, section 2,

p. 1334.) It was a proviso in the appropriation. act :

forbidding public funds from reaching public em-

ployees who advocated, or who were members of

organizations. which advocated, the overthrow of

the. government of the United States by. force or

violence, During the same session, the legislature,

-throygh House _Concurrent Resolution No. “10,

created a joint fact-finding committee on un-

American activities. (Laws of 1947, p. 1378) This

committee held extensive —- involving many —

Ww itnesses.

“The niles reported its extensive findings

and recommendations to. the 1949 session of the

legislature. (House. Journal 1949, p. 1095. )

~ On page 1095, the committee incorporated by refér-

ence two lengthy printed reports containing a steno-.

graphic transcript of the hearings, the First Report

Un-American Activ ities in Washington State, 1948,

_ and The Second Report, Un-American Activities in

Washington State, 1948. The First Report and Sec-,

7 ‘ond Report are a part of the record in this case,

ie though, because of their bet not the printed record,

‘Tn 1951 the Governor in his message to the

islature urged theegislature to “give thought to

poet of appropriate provisions for the curbing

subversive activity, and to protect our free in-@

stitutions from perversion into weapons of ager es-' -

_ sion against us in the hand of our enemies.” He

" further pointed out at Ft.

“By Concurrent Resolution <No.. 10. the

Thirtieth. Legislature created the Joint Legis:

lative Fact Finding Committee on Un-Ameri ican

“Activities. Through the labors of this commit- , |

tee much was learned of the degree: to whieh’

disloyal .groups had’ infiltrated into organiza-

tions -of our senior citizens; into various eco-

* nomic and educational groups. As the result.

of these disclosures, some remedial action was -

taken but in’ the light -of the grave emergengy

which’ we now. face, additional action must be,

taken immediately. * * . (House Jour-

nal 1951, beginnin’.at p. 23).

‘A bill was introdneeéd by executive request

act is very similar to Maryiand’ s Ober“Act. (Chap-

* ter 86, Laws of Md.,1949, Anno. Code of Md., Article

864.) Five of the original twenty-two sections,

namely, sections 6, 7, 8, 10 and 21 were vetoed. The

Court will note iat itis a bread act relating to many

? matters in addition to public employees...

1 \ Ww hich later became chapter 254, Laws of "1951. This |

‘ We tt

R-:

legislature, pointed out that “* ~

In 1953, after this Court’s decision ‘in Wieman .

v. Updegraff, 344 U. S. 183, the legisiature passed

_ chapter 142, Laws of -1953, jaianiiia the definition -

of “subversive person,” to make. the’ element of sci-

enter. more clear, Pye s

In 1955, the Governor, in his message to. the

7” *

of communism. loorns as an ever greater threat. to

the future ofthe free world than the ‘ isms’ of the:

past. The.United ‘States is giving, and’ must con~

tinue to give, leadership to the non-communist world.

ears —To do so, with ever increasing confidence and vigor,

— our nation must. Jead from strength, ‘the strength

from .withiri that comes. from a free people, spirit-

ually strong ‘and functioning through the soundest

‘set of governmental institutions yet developed by

men, °°" 2%) eee Journal, 1955, p: 34.)

During this session chapter 377, Laws of 1955, one

‘of the acts in question was passed.

- In the years sinee World War II, the iebtateine e,

responding to world conditions; has passed several

’ measures relating to subversive aetivities. The ap-

proach has been pragmatic. It began with a proviso

in the budget, followed by a fact-finding committee

which was discontinued two years later. After the

Korean conflict began a ‘compr ehensive act was

passed, which in turn’ has been tw ice amended. The:

patter n was formed over man¥ years and was based

upon exper ience.@yo such legislation has deen passed

in almast a decade.

the menace_.

A) .

ey ee

_- : —_ ~ —F

iB. Pac ot eactiaeait

The -1955 Act was unsuccessfully. attacked in

1955. by, two University of *Washington professors.

They prevailed in the State Superior Court, but the

federal constitutional questions which they raised

in that case were decided adversely to them by the

_- Washington State Supreme Court. Nostrand v. Bal-

mer, 53 Wn. (2d) 460, 335 P. (2d) 10. The plain-

; tiffs there, who were professors: with tenure at the

university, appealed to this Court. This Court -va-

cated the decision .of the State Supreme Court and .

remanded the ease for consideration of the question.

of whether state ‘employees required to sign such

an oath are entitled'to a hearing at which refusal .

to take the oath could be explained ‘cr defended.

* Nostrand v. Littie, 362 U.S. 474. Pursuant to this

remand, the, Washington _SppremeCourt answered

the question in the affirmative. Nostrand v. Lite, -.

58 Wn. (2d) 111,361°P.-(2d) 551. As to all other

issues involved in the case, the State Supreme Court ~

adhered tothe views. expressed in.its earlier opinion.

An appeal was again taken to this Court. On

_ January, 22,-1962, this Court granted the State At-

‘torney General’s motion to dismiss. This Court dis-

missed the appeal “for want of a substantial federal :

“question.” Nostrand-v. Fitile, 368 U. S. 436.

€. THE OATHS

The Court has before it two oath requirement’.

The oath required by the 1931 statute is’ promissory

: A A |

‘in hacks while the 1951 statute, as anaes by the .

- 1955. statute requires a. disclaimer oath. In the

former, the person taking. oath promises inter alia

to support the constitution and to promote respect

for the flag. Oniy teachers need take this oath. In

_. the latter, one disclaims inter. alia’ present mem- |

a bership’ in certain organizations and disclaims the

‘commission of certain acts relating to violent over-

throw. All state and local employees and ‘officials

_ must take this disclaimer oath.

This i is not the proper place to trace the nce

. of the oath. (This was done very admirably by Pro- -

fessor H. Silving in 68 Yale L. Jour. 1329.) It. is.

6s sufficient here to point’out that the history of the oath

‘ goes back.to the pre-religious, even the pre-animate

. period of culture. The oath was thought by primitive

man to be a vehicle of magic power. Despite the fact

that the oaths before the court have iittle or no re-

semblance to their early ancestérs it it is small-wonder

that even today the term “oath” or “loyalty oath” i is

heavily charged w ith emotion. The word “affidavit, =

stemming from the Latin, has the same meaning but |

. lacks the cognotations. But “loyalty oath” and ‘oath

of allegiance” are the terms in popular use.

The: 1955 stafute does not pres@ibe any par-

ticular oath forms. The staté attorney general has

provided a suggested form to the state printer. This-

suggested oath form has been revised at least twice

by the state attorney general. ‘The state printer in

turn supplies the. oath forms t» various agencies.

aes o

Some large agencies print’ their ‘own oath forms,

other agencies combine the oath form with an ap-

plication ferm. Oaths are kept on file with the em-

ploying agency. Regents are pene of any dis-

- charge based on refuSal to sign-the oath.

A person, taking the path swears to two facts:

that he is not a subversive person as defined in the

Act; and that he is not a member of the Communist. *

Party or of any other subversive organization. Only

the second fact’ is required by the 1955 ‘Act. The |.

former stems from sections 11. and 12. of the 19351

Act. | : a

Sadie, 13 of. the 199 Act concerns non-sensi-

tive positions. No claim, is ‘made by Employees that

the positions: involved .i in this case are, or should be,

non-sensitive.

The oath requirement contemplated by section: |

~ L of the 1955 Act looks to the present. Thus, it is

yossiblé for & communist to resign from the Com-

. munist Party today and take’ the oath-toemorrow. _

Unlike other oath requirements before this court:

7 aes membership is not involved.

_ The oath so clearly satisfies the scientei" re-

quirements as’ a result of statutory amendment |

(chapter 142, Laws of 1953), judicial interpretation

| (Nostrand v. Balmer, supra, at p. 460, 470; 476 and _ |

484) which this court must “accept without, question”

Cramp ¢. Florida, 368 U. S. 278;andthe form of-the

oath itself, that Employees have made no:claim that

scienter is lacking. Wieman v. Updegraff, 344 U, S:

183 i is, asa result; not applicable.

. See: 4m

The oink Yequirement is ‘pinpoints to a par-

ticular -group, - public employees, with regard to ©

which the legislature not. only has the right but the

duty to set up qualifications. No attempt was made

to cover a person not a public employee or officia! as:

in Speiser v.. Randall, ‘S57 U. S. 518.

pee ae THE “REFUSAL” T@ SIGN.

Regents proffered | the oaths to the Employees

and allowed them until October 1, 1962 to sign. Prior

to October 1, 1962 the low® court enjoined the Uni- .

ver sity from demanding the completion of the oaths,

an injunction being presently in force.:' Hence, as

~ the lower court noted, “Enforcement of the statutes

_ by University officials, while clearly intended, is stil! -

prospective as a result of this litigation.” (R 2, 241 ).

- Thus, there. is nothing preventing any Employee -

from changing his mind today. and deciding to take

_. the oath, dispite his vehement statements qi inten- .

tion. (See R203.) ‘Thus, the word “refusal” when.

ae occurs in the pre-trial order and in the lower court

_ opinion must be seen in the light of a threat, avowal,

or statement of intention, subject to change at any i

moment, not. as an actual irrev ocable refusal. There

is, at present, ‘not one refusal on which dischar ge

_-eould be predicated. The “refusal” of the Employ ees _

. ; is not an operative fact. In other words the demand

for information is a cer ‘tainty (and the First Amend-

ment argument should be seen in this light) and the

continued refusal and possible diseharge is only a

possibility (and the Fourteenth Amendment argu.

y 1g ee

ment should he's seen in this light). The question of

. whether there'is an actual controversy is geo in.

Part 3. rts : .

- On May 28, 1962 a ‘ memoranduin from the office

hal the President of the University of Washington to

"all members of the staff of that “university was dis-

tributed. ‘This memorandum provided. in part ag

follows: Saeed ~

babe: To ‘dbable the Board of Regents

‘amis iteclt of the responsibility: placed upon

Vv law, hag of the pefsonnel records of

the'G ener is in process so. that those per-

ses Who have not previously sworn to the re-

' quired ‘gaths may be requested to do‘so. These

-, Feqnhests will’ be submitted as soon as possible

“but surel}\ no later than September 15, 1962.

Since the end of the academic year will be

“ ,° reached in a few days and-a substahtial number.

of- persons wilt go-off the University payroll

for the summer ynd@ may not even be in Seattle, °.

_ compliance will

with notification

t in the event of ‘failure to

_ comply, employment will be terminated 30 days

. later as of Qetober-34, 1962, unless a delay in ~

taking saction «) fermmate seems reasonable ~

because of causes other than intentional refusal

* to sign.” “(R. 173) =

This was further elaborated by the rroyost of

the University of Washington in\a memorandum

requested by October 1, 1962,..~

of June 4, 1962 directing university deans, directors are

~ and chairmen of departments to beg administer-

ing the oaths: \: .

“It is evident. that the task -of obtaginig all:

of these notarized signatures will be protracted °

and t time consuming. Therefore, 1 am n sending

~ : \

‘ \

. XN

Pr ee

to you in this mail a supply of Oath Forme A

and B with the suggestion that those who wish

. to complete the form prior to the October 1,

1962 deadline be encouraged to do so since it

will reduce the costs of administration in meet-

ing statutory requirements if as many, persons

as possible will complete the form in thé course

of the summer and thus reduce the ‘crash’

cierical operation which-would otherwise have. .

to be faced near October 1, 1962.” (R. 163) =

However, on June 25, 1962—several months ;

prior to the “October 1, 1962 deadlines-a temporary.

fp Sse: order: was signed ordering that’ the Re- - :

gents be “temporarily restrained. from enforcing —

Chapter 103,Laws of 1931 and Chapter 377, Laws

. of 1955, of the State of Washington, by requiring |

___ the plaintiffs-or others similarly situated to execute

, either Oath Form A or Odth Form B, -*) *) *”

(R. 36).-On February 26, 1963 the three-judge dis-

‘trict court ‘ordered..that “the enforcement of the

judgment heretofore entered will be stayed for sixty...

, days; subject to-extension of the stay until final dis-

position ‘of.the case by the Supreme -Court: of ‘the -

United States Sn yg ee ye f |

There can be no legal: refusal as long as there

is no. demand. And there can be no demand as long |

vas the injunetion is in force.

(ce. |B Bag EMPLovees :

Me Two observations should be made. The record

‘is silent-as to the contract provisions of any of the

Employees, although the Washington Supreme Court .

has indi¢ated that thése may be important in deter-_

0...

- mining. the nature of an employee's heating: rights.

: Second, Employees, by the very definition ‘of: the

word, are not appliéants. . Thus, the question of.the © —

1931 statute and the 1955 statute with regard to.

aPplicants i is not before the Court. «

= PART II

SUMMARY OF ARGUMENT

The Employees cannot challenge the constity-

tionality of the provisions of the 1951 Act indirectly

by challenging only the 1955 Act and the actions.

of administrators acting within the scope . of the

1951 Act, as amended. :

Despite the fact that the Washington iil

- Court has twice construed the 1955 Act with re-

. gard to tenured professors, the number and variety

of questions not before that court which Employees

are asking this Court to resolve, the declaratory :

nature of the case, the fact that, the act under ¢on-

sideration is amendatory in nature; and ‘especially

the fact*that there Has been no actual refusal to sign,

all lead to the gonclusion that the questions relating .*

.. to the disclaimer oath are not‘ripe for decision. With

regard. to the 1931 oath, this’ Court, should. affirm

‘the lower court’s decision to exercise equitable ab- _

stention. There has never been any litigation in-

is volving the validity of this oath, the present case __

alone excepted.

€

Neither the 1931 oath osiahilawiieant nor the 1955,

oath requirement involves a violation of the .First

tee

ei om

“h 4

> a

' Amendment, as aaa applicable to the states by the

Fourteenth / endment. A‘distinction must be made, ,

between ‘the s ‘ate’s constitutional right. to demand |

certain, information on pain of possible: loss. of em-

lent: (which involves First Amendment, con-,

derations) and ‘the form and method by: which cr

“the information ‘is demanded. (which involves the.

Fourteenth Amendment considerations). With re-

gard to the former, precedent. strongly. supports the |

ton of the oaths. The Court’s decisions.in Beat

. Rd. of. Education, 357 U. S:.399, Adler v. Bd.-of 2 s

a tae 342 U. S. 485, and Garner v. Bd. of Pub-

lic Works, 341 U. 3. - 716,—<qjuite apart from the oF

‘matter of the form of the inquiry—certainly hold ,.

_thd& the inquiry may be made as a reasofiable con-

dition of: employment to maintain the integsity’ of

the, civil service. ii

The 1931 Act does not violate the First Amend.

‘ment because. the state has a substantial and pret

interest in having teachers w ho will inspire loyalty’

toward country on the part of students. Jn this" ree ’

gard- there is a sharp distinction between the cas

at bar and W. -o State: Board of Education ¢ Bar-

nette, 319 U.S. 624, since the latter'casé did not je oe

late toa group, Os as teachers, where special quali- ? ig

fications.are involved, but rather to:students. “In :

this epi Barnette resembles Speirs ey v. Randall, Pe

357 U. S. 513, in that the state attempted to set

‘

wpa ae requirement affecting a broad segment,”

of the: public. without demonstrating a convincing |

societal reed. Se Seatac: her Buaes

. a ‘

i . °

t : ; rg

. . ee

‘ ’

Seng

> : =k

s .

- of religion. : ene Pe

The two repor ts of the Wadhtigton State Un- -

Ye”

: O- 6 5 ud “ : . ,

<% ; e

, e & °, oo A he ,

F © : 5 *

. ae ea os

ae . e

ie . . ° 7

| era if < 22.

y- + | ee

. 2° °

° s)

The 1955 Act, ig not an unconstitutional prior

ae restraint. Shelton v. Tucker, 364 U.S. 479; has no

bearing. on the present case since in the present case _

the) means used by the state to effectuate its legiti-

mate interest in combating subversion are. reason- :

sty tailored for this purpose. — . « -

. The ‘oaths do not Violate the First: Astaadiniaaet

guarantees on religion: They neither constitute a

_religious function nor do they; baséd upon, Re Sum-

mers, 326 U. Ss. 561; interfere with the free exercise

American Activities Committee leave no doubt that

the interest to be protected is substantial.. This Court :

has held in such cases as Garner, Adler, and Douds,.

agll supra, that the societal interest in safeguarding

the teaching profession against disloyalty and pro-

tecting against political strikes is substantiah in-

deed, and justified the means “used ‘to acseag: such

interest.

Given the fact that ‘a ‘scdtal interest exists a

there can be no question that the means used. are

_ reasonably related to the protection of this interest;

. for the existence of a criminal sanction ‘might sive. .

the subversive employee pause before signing the

oy oath.

. Nei

‘+ the Fourteenth Amendment.. There is no violation

é > $

of proeedural due process since employees with

academic tenure certainly are entitled to a hearing.

. us 34 , 2

er the'1955 Act nor the 1931 Act violates |

28.

Employees with ciyil service ' tenure or no tenure

* at all: are probaby entitled to’a hearing. The former

- group would probably be entitled to a hedring as a

result of the State Civil Service Agt (chapter 1,

Laws of the State of Washington 1961) while the

latter-group wouid probably be entitled to a hearing

as ‘a result of the Administrative Procedures Act

(chapter . 234, Laws of the State of Washington

_1959).. There are indications that the Supreme Court ©

off Washington would construe the Subversive Ac-

tivities Act aiong with. these more recent acts. Since

. a- hearing will be available te the Employees it is

not necessary to rely upon cases involving im-

position of a civil disqualification without a right toa

‘hearing. The question of Whether an. employee who

refuses to-sign the, oath required by the 1951 Act

would be entitled toa hearing is.a matter’ for con-

jecture. ri:

The 1955 Act is not dinsonatitetiqnally vague.

Cramp v. Florida, 368 U.S. 278, is not applicable

since the language of the oath jnvalved there -is

much broader than the language involved in the

present case. This Court has upheld penal statutes

containing . language roughly comparable to that

‘involved in the present case. Once it is determined

| that the statutes dre not void on their face this Court .

will assume that a statute will be interpreted by the

; highest state court in such a Way as to avoid raising

- constitutional problems. The wortls used | in the Sub-:

versive Activities Act, as.aménded, in no way render

iflegal or questionable the activities and associations |

\ ¢

' 24

‘listed by the Employees. This,. combined with the

high measure of proof necessary to convict one of

perjury, shows that Employees’ fears of conviction

of perjury are withaut a reasonable basis.

It cannot be argued that the 1931 Act is so vague

as to render it unconstitutional since a violation of

the oath, it being promissory. in form, i is nota , crime.

The 1955 Act and the 1931 Act do not involve an :

unconstitutional shifting of the burden of proof,

sinee Speiser v. .Randall, 357 U.S. 513, is not ap-

plicable; the present case involves public ernployees, -

a group specifically excepted by the Court. in Spéiser;

it does not involve a segment of the general public, ©

such as veterans, which bears no r ‘elation to.a specific

societa! need such as combating. disloyalty among

public employees. The 1931 Act has been interpreted

as being not applicable to aliens. However, employees

.who are citizens cannot claim.that they are denied’

equal protection of the laws a it would be unfair

task aliens as well as citizen¢to “promote * * *

undivided allegianee to the. gover nment of - the

- United States.” : ,

Nor are other contentions of: the Employees

valid. The oaths are not Bills of Attainder since —

they do not involve punishment but rather a quali-

fication for employment. In addition. they look to. .

the present, they are not’ retrospective.

The pre-emption argument Based upen Pennsyl- —

vania v. Nelson, 850 W.S. 497, is not valid because

that case has been-reduced to its precise facts by

. o

es pee. Pe

~ Uphaus v. Wyman, 360 U.S. 72; and Sweezy v. New |

- Hampshiré, 354 U.S. 234.

The 1955 Act does not violate the: spnaiteabbiial

pr ohibition against gelf-incrihination ; for the Em-~-

ployees are not asked to testify against themselves.

. They must, however, comply with the standards of *

eligibility established by the legislature. There is

no inquiry. into past conduct. Finally, the clause of

_ the Fifth Amendment protecting a person against

being compelled to he a witness against himself is

not made effective by the Fourteenth Amendment.

as a protection against state action.

The district court was. -eorrect in’ dismissing

Employees’ complaint with prejudice since the court ~

decided against Employees on the merits with

regard to the 1955 Act. With regard to the 1931 Act

the fact: that the court invoked the doctrine of

equitable_abstention would only: ‘seem to preclude. 3

- the Employees from bringing; another federal court

- action. It would foree them to go .up oe the

7 state cour ts.

.Finally, the distr ict court. was correct in dis-

missing the students since the statutes involved here

' directly affect the Employees but the effect on the

-students is remote and speculative. ‘4

bei

26°

PART Ill

THE 1951 ACT, AND THE PORTION OF THE

OATH BASED THEREON, ARE NOT

PROPERLY BEFORE THIS COURT -

The Employees are asking this Court to declare

portions of the 1951 Act unconstitutional despite the

fact that the 1951. statute is not before the Court.

One, searches the pleadings and, the pre-trial order

- in vain for a clear request that it be declared un-

constitutional. Employees have now tried subtly to.

broaden their attack. Thus the statement is made

that “the definitional ‘sections of the 1951 Act, set.-

forth above: and incorporated into’ the. 1955 Act.

‘oe 1 oa (App. Br. p. 34). (Emphasis ‘supplied ). zf

In other portions of this brief the Employees have

asked this Court to pass on the constitutionality of

those very definitional secticns. (App. Br. p. 67-78,

for example) The Employees have thus begged the

question of whether, under state law, the portions .

-of the original statute set out in the amendatory act

along with the new matter fall along with the new

matter, if the latter is found unconstitutional. The

Employees have begged the question of whether,

_ under state law, one may: attack’ the definitional

sections “through the: backdoor”. by attacking the

words defined as they appear in an amendatory act

even though the definitional sections, themselv es, are

: not a part of such amendatory act.

One. aspect of this broadening: attack is pre-

sented by the Employees’ treatment of criminal

sanctions. , ;

; oe

One is ‘oulnoted against the imposition of. a

criminal sanction by ‘a panoply of. constitutional

- guarantees which are not applicable to the imposi-

tion of a civil disqualification such as loss of public

| employment. This is true even though the latter may,

on occasion, be more drasti¢ than the former. —

Quite apart from the crime of perjury, the 1951

statute contains certain criminal provfsions based on

knowing membership in a subversive organizatier

which, to be candid, would pose constitutional ques-

tions if they were before this Court, in view of Noto ~

my » U.S., 367 U.S. 290 and Scales v. U.S., 367 U.S. |

203. Employees -have made frequent reference to

‘them as if they had somehow attainted the statutory

provisions in question. (App. Br. p. 76 where. Em-

ployees cite the criminal cases of Scales, Noto, both

supra, Yates v. U.S. , 354 U.S. 298, and Dennis °.

U.S., 341 U.S. 494, as authority for the proposition

that a civil disqualification may not be imposed. )

In addition to creating confusion, Employees”

- failure to challenge the 1951 Act directly creates

_ two serious questions. First, can this Court on this

record invalidate the 1951 Act?’ Second, assuming

that the Court cannot, how would invalidation of the

1955 Act affect the 1951 Act? :

We submit that the Court cannot invalidate the

1951 Act.. Employees have challenged an -adminis-

‘trative: measure, namely, the oath’ as formulated

without challenging the statute upon which the

administrative action is based. While this type -of

challenge i is common enough w her e the administr ator

aes ; |

oe > + gg |

_ has exceeded the bounds of his authority, and is not :

acting within the scope of his statutory authority,

it is surely a rarity where, as here, no claim is made

that the action of the administrator is, without statu-

tory foundation. On the contrary, they . have, by

way of argument, attempted to challenge the defini-

tional provisions of the 1951 Act. It would-be a-

bizarre decision which str uck down an administrative

measure clearly based tipon an unchallenged statute;

ane would be an even more bizarre decision: which |

invalidated a statute not before the court on the

‘basis of an ‘administratige act: A: portion ofthe oath

is so directly bound to the 1951 Act, as pointed out

earlier, that to challenge this ‘portion of the oath, the

ag Emplovees must challenge the 1951 Act. This they.

have not done. This they ‘cannot do for two reasons. .

' In the first place, Employees did not challenge 3

' the 1951 Act in the lowe? court and may not do so

for the first time on appeal. Shelley v. Kraemer, 334

"U.S. I. In addition; Employees. have not directly -

‘challenged the 1951 Act in their appeal to this Court.’

- The question i is thus not raised. U.S. v. Spector, 34 3

_U.§. 169: The question, at-best, lurks i in the record,

and this 1s not sufficient. McNeal v. Culver, 365 U-S.

"#190, This Court is rightly reluctant to pass upon

constitutional! issues which are not 2a page pre-_

-” sented by the record, Arkansas F uel Oil Co. . La.

ex rel. Muslow, 304 U. S. 197: poe Ls

The: other question to be considered is, how |

would invalidation of the 1955 Act affect the 19: 51

Act? = .

29 a. soe

The general: rule, supported by Washington

cases is: if the amendatory act is wholly invalid, —

the statute sought to be amended is held to remain ©

in full force and effect. 1 Sutherland, Statutory

Construction, 442 § 1937, 3rd ed. 1943. ‘SR North

Bend Stage Line v. Dept. Public Works, 170 Wash.

- 17, 862. (2d) 206, — the state eine court said ..-

"at page 220: _ | ; j

“* * * These sections, as unamended,

provide for review of orders.of the department.

in the superior court substantially as, by thése

Brena ly they provide for such review in

i Ae OuNG, 88

And @t page. 228 after holding ‘the grant of

direct appeal from the department to the state su--

preme court sessierisascpae the.court said that the

amended statutes “* * * remain unsuperseded

and unrepealed by chapter 119, Laws-of Aigeie p. 363 >

> * *” citing Corwin Investment Co. v. White,

166 Wash. ere i We:

vu. Balmer, 58 Wn. Vea), 160, 335 P. (24) 10, the

‘Employees admittedas much.when on page 85 of.

their brief to the state high court they unequivocally

stated that, “To declare the entire 1955. Act un-

constitutional is to leave the 1951 Act totally effective

and to eliminate the problems of interpretation.”

This, it might be added, would include Section

s bee the basic provision making subversive persons

ineligible for state and ‘local, employment.

View ed in this light, the Employ ees’ references «-

to the 1951 Act.and to the portion of the dath derived

‘fr Oni, the 1951 fst seem indeed w ide of the mark..

Q :

PART IV

THERE IS NO ACTUAL CONTROVERSY

° ‘THe’ DISCLAIMER OATH

The two prior decisions by the Washington Su--

“preme Court in no way compensate for the un-

certainties created by the pomnstice nature of this” rl

Case. - . ; ~

Employees sonantadly ‘refer to the re actiaine,

Nostrand. v. Balmer, 53 Wn, (2d) 460, 335 P. (2d) —

10; Nostrand v. Little, 58 Wn. (2d) 111, 361 P.

(2d). 554, as if they cleared away any doubt regard-

ing the ‘1955. Act, thereby making this case ripe

for decision. But, in faet, these decisions are not

all-purpose interpretations capable of resolving the

kaleidoscopic legal questions which might arise un-

‘der the complicated, twice amended 1951 statute.

' They answer some questions but they raise many

‘more. The decisions illustrate the shortcomings of _

_ the declaratory judgment procedure; these -occur, i

through no fault-of the court, where broad, sweep-

‘ing judgments are asked for by counsel even though

a substantial bedrock factual basis’ for such

broad judgments js lacking. The result,. of course,

is that it‘is sometimes difficult to distinguish_the—-

holding of the case from. dicta. For example, in

the two: Nostrand cases, the court had before it

only two plaintiffs, both full professors with tenure.

' The admissions of fact were brief, almost. cryptic.

’The findings of the- state trial court recited that

through the professors’ “employment contracts and

A —_—

——

aoa

- 3 Seas $1,

_ pursuant “to statute and the rules and regulations

of the Cniversity, plaintiffs. have certain . tenure ~

dri * * ** (Emphasis supplied) Nostrand

; Little, 58 Wn. (2d) 111, 117, 361 P. (2d) 551. .

“Atter two hearings before the Washington Supreme

‘Court and one before this Court one still knows little -

more than that the professors “* * * are.en-':

* --titled to a hearing before the tenure committee con-

ducted in the manner prescribed-in the applicable

réles and regulations *,* *” 58 Wn. (2¢)~at |

p. 132. One still does, not know the scope of Wash- —

ington Supreme Court’s review. One does not know,

whether, under the 1951 and 1955 statutes the

Washington Supreme” Court would reverse as con-

trary to law a decision on th¢ part of the hearing

tribunal and affirmed. by the Board of’ Regents al-

lowing a professor to retain his employment even

though he refused to sign the disclaimer oath for ~

reasons of consciencé. One knows even less about

the result of a refusal to sign-on the part of- those

employees, if any there be, who have neither. academic

tenure} civil service tenure, nor contract rights as.

to tenure. One does not know: the extent to which

' the non-academic tenure system and the Administra-

tive Proceduyes Act-wouid-afford hearings to. ‘those

- empleyees without academ/e tenure. That the Wash-

~ ington court ap preciatedl the difficulties created, is

obvious from ‘the court’s statement that even in

a declaratory judgment proceeding: it is-reluctant -,

to rule on a hypothetical situation. 58 Wn. (2d).

“at p. 119. And, foreseeing how its opinion would

ou |

. be a “tes ae prance shaded: “We, of course, |

~ dimit. our consideration of the problem to the facts

before us. Even. in a: declaratory. judgment action, ,

there’ must be a. ‘justiciable controversy.” 5S Wn.’

at -p. 121. Nor does the court | leave: for ee

the question of what the facts MPOF ek

“The material. facts shown’ by the. record in.

the present case as to.this hearing issue are

that these two professors (who have never re-

‘fused to take the oath) are presently employed _

under contract as -full professors by the Uni-

versity of Washington, which i8 operated ‘by

the regents. Through their employment con-

tracts, and pursuant to statute and the rules

- ‘and regulations of the university, they have

., certain-tenure rights. [Fd8tnote omitted] The |

regents Have demanded that the professors sign

and swear to an oath (a copy of which is at- .

tached to theiy complaint), and have further

stated that, unless the professors cornplied with

such demand, their employment contracts with

the university will be terrhinated by’ the’ re-

gents. ” 58 Wn. (2d) at p..123. :

is The uncertainties surrounding this case seem

‘ much more. numerous than those pointed out-by

Mr. Justice Frankfurter (dissenting ) in Adler u,

_ Board of Education; 342 U.S.’ 485; 497:

“We are asked to pass on a ‘scheme to coun- .

_teract what are currently called ‘subversive’

‘influences in the public s¢kool system of New

_ York. . The scheme is formulated partly ‘in = -

_ statutes and partly in administrative regula--

. tions, but all of it is still an unfinished blue- .

. print. We are asked to adjudicate claims

against its constitutionality before the scheme

has been put into operation, before the-limits

that imposes upon free inquiry and asseciation,

° <

the scdpe of scrutiny that it sanctions, and’ the

procedural safeguards that will be found to be -

_ Implied for its enforcement have been authori-

‘ tatively defined. I think we ‘should adhere to

the teaching of this Court’s history to avoid

_ constitutional‘adjudications on merely abstract

or speculative issues.and to base them on-the |

concreteness afforded by an actual, present, de-

‘. fined controversy, ‘appropriate for judicial judg- -

ment between adversaries immediately affected

y it A Pe apt

' This case. » differs factually from Adler in that; in

Adler no oath form was proffered to the teachers.

- Hence, there was no problem of, Jack of a “refusal”,

a problem: which exists in, the. present case. A. delay

by the Court in Adler would not necessarily have

caused that. case to become more ripe for decision.

Whereas, in the present case, an action brought after,

an actual refusal would settle many questions.

Itis true that the statutes inthe present case

are in effect; but it is also true that no controversy-~

has arisen from an employee’s dismissai. Indeed,

there is no showing that any. employee has ever been -

dismissed under it. Regents submit, therefore, that

this Court should see the Employees’ assertions that.

the definitional sections “‘have twice been passed up-

- on” (App. Br. p. 34), that the question of the br eadth .

of the definitions had been discussed ( App. Br. p. 35)

~ “and especially that the amended. statute “has -been

authoritatively construed,” (App. Br. p. 35) in this

light. The same is true of the Employees’ reference

_ tothe state supreme court’s “expressly stated ea

with regard to the sm toa spartans (App. Br.

169) :

™~ £253

“ie.

= : --, aA

i THE 1931 OATH?”

. The 1931 oath of allegiance: ‘statute, ehapter

an oath which reads as follows:

“T, the undersigned, do solemnly swear (or

affirm) :

‘“(1) That I will support. the constitution

and laws of the United States of America and _

of the-State of Washington, and will by precept

and example promote respect for the fiag and .

S the institutions of the United States of Amer-

ica and the State of Washington, for reverence ™

for law and order, and ‘undivided: allegiance to

the government of the United States. ~ * *”

' This statute has naver been construed, by. the

Washington Supreme never Regents adhere to the

position urged below, adopted by the three-judge

district court, a position constantiy reiterated

counsels that decision of the federal, question be de-

ferred until the potentially controiling state law issue

Company v. Ideal Cement ‘Comany, 369 U.

(1962), and cases cited therein. Regents iis “e no

case where this Court has struck down a state oath

requirement without the state high court having ©

had an opportunity to pass on “it. Employ ees point

out. that Shelton v.. Tucker, 364 U. S, 479, was an —

appeal from a three-judge district court (App. Br.

high court was decided at: the same time.

Fy Sm Se

—°103, Laws of 1931 (RCW 28.70. 150 et seq. ) re-

quires the. professors and other. teaching employees _

‘at Washington‘s state universities to subscribe to

- this Court, namely: “Wise judicial administration

’ is authoritatively put ‘to rest.” United Gas pee,

. p. 138) but'a companion case, Carr v, Young (same :

citation), which had been appealed from the state

: of :

“the scope of scrutiny that it sanctions, and the

procedural safeguards that will be found to be

implied for its enforcement have been authori- . ~ f

tativeiy defined. I think we should ‘adhere’ to ~

the teaching of. this Conrt’s history to avoid

. constitutional adjudications on merely abstract *

- ‘or speculative issues and to base them on the

~ concreteness afforded*by an actual, present, de-

fined controversy, appropriate for judicial judg-

" ment; betweenadversaries immediat sea eames So,

nh ete dt Bec nd eC rope

This case differs factually from. Adler in n that j in

Adler no oath form was proffered -to the teachers.

Hence, there was no problem of lack of a “refusal”,

a problem which exists in the. present case, A-delay

by the Court in Adler would not wecessarily have’

caused that case ‘to become more ripe for decision.

Whereas, in the present case, an action br ought atten,

an actual refusal would settle. many questions.

It is true that the statutes in the present case

are in effect; but it is also tr ue. that no controversy

has arisen from an employee's s dismissal. ‘Indeéd, 7

there is no showing that any employee Las ever been ,

.dismissed under it. ‘Regents. Submit, therefore, that... |

this Court should see the Employ ees’ assertions that

the definitional sections “have tw ice been passed up-

on” (App. Br: p. 34), that the question of the breadth

of the definitions had been discussed (App. Br. p: 35).

‘and especially that the amended Statute. “has been.

authoritatively construed, ” (App. Br. p. 35) in this”

light. The same is true of the Employees’ reference

to the state supreme court’s.“éxpressly stated policy”

with regard to the _— to a hearing. {APe Br. p. :

169),

' @

Be .

34 Ehees

THE 1931 OATH

The 1931 oath of. aliegiance statute, chapter.

103, Laws of ‘1931 *RCW 28.70.150 et seq.) Te-

quires the professors and other’ teaching employees

at Washington’s state ‘universities to subscribe to

: an oath which reads as follows:

ee Seay 5 the undersigned, do solemnly Sever cle

affirm) :

(1): That T will support the. setsatiliction

‘and laws of the United States of America and

cof the State of Washingtén, and will by precept

and example -promote respect for the flag and

no the institutions of the United States of Amer-

ica and the State of Washington, for reverence

for. law and order, and undivided allegiance to

_ the government-of the United States..* * *.”

This statute has never been construed by the .

‘Warkiggton Supreme Court. Regents adhere to the

position urged ‘below, adopted by the three-judge

‘district court,. a. position constantly reiterated by “3

this Court, namely:’ “Wise judicial administration

counsels, that decision of the federal question be de-

ferred until the potentially controlling state law.issue | |

is authoritatively put to rest.” United Gas Pesan

“Company v. Ideal Cement -Comany, 369 U. S. 134

(1962) and cases cited therein. Regents ee of no

‘vase. whereXhis Court has struek down a state. oath

requirement without the state

igh court having

had an opportunity to pass on, it. Employees point »

out that Shelton v. Tucker, 364 U. S. 479, was an

appeal from a three-judge district court (App. Br.

' p. 138) but a companion case, Carr v. Young (same

citation), which’ had been appéaled’ from the state

'_Aigh court was decided at the same time. , Ce

Cer

als : 2 35. :

PART V

THE 1955 ACT AND THE 1931 ACT DO NOT

VIOLATE THE FIRST- AMENDMENT |

Tue Case Law Is OveRWHELMING TO THE EF FECT

THAT THE DISCLAIMER PROVISION OF THE 1955

- Act Does NoT VIOLATE THE. FIRST AMEND-

MENT. ; Axe

This Court has decided. no one case involving

every issue and every fact presented here but the

. dase law supporting Regents” position is so ‘strong

7 that to comhat it Employees must make ‘fine dis-

tinctions, distinctions without meaning, and ask the .

' Court to disregard precedent® »:.

. Thus, Employees write off Konisberg v. Cali-

fornia, 353 U.S. 252, and 366 U.S. 36, In re Anas~

. taplo, '366'U. S, 82, and Adler v. Bd. of Ed., 342 UcS.

485, as having been decided on the basis of “priv-_ |

ilege.” (App. Br. p. 57) It is true that, taken alone,

certain ¢anguage on p. 492 of Adler and p. 90 ets

Aniastapto seems to’speak,in terms of “right-privi-

lege,”” but the* cases certainly were not decided 6n

. this basis. This Court did not decide that a state

eonld dehy the right tu practice law to mémbers of

a particular race or Feligion on the theory’ that state —

remploy ment is a “privilege” w ‘hich could ‘be limited

in any way, however arbitrary. is

ae Nor can Employees: successfully show that

“SY N.A:AC.P. v. Alabama, 357 U. 8..449, or Bates v.

d Little Rock, 361 U.S. 516, corrodes . Adler yp: Ba. of

Ed., 342 U.S: 485; + for underlying the-N.A.A.C P. ,

| oe be

decision,. where this Court held that a state may not

compel the disclosure of N.A.A.C.P. membership

lists, is the premise that the nature of the organ-:

ization is- decisive. The Court was careful’ to dis-

< tinguish Bryant v. Zimmerman, 278. U. S. 63° a

upholdjng a New York statute requiring disclosure’

of Ku Klux Kian membership. Se ae

~ Gerende v. Bd. o; Supervisors, 341 U. S. 56,

involving, as it does, the summary imposition of a’

civil disability upon ‘a refusal to take an oath is

strong authority against the Employ ees acened

Beilan v. Bd. of’ Etlucation, 357 UsS. 399, is *.

certainly authority against Employees’ position ra

the First Amendment argument, although it-is-not-—-— ;

applicable to the p uratdue process argument.

Most startling of all is Employees’ attempt to —

distinguish Garne rv. Bd. ef Public Works, 341 U.S. |

716. The fact is* that the- petitioners in Garner

argued the First Amendment points. and the Court

took note.of this on p. ¥20, But, before cqning to

grips with the bill of attainder, ‘point, it,.con-

cluded on page 721 that) “This Court has held, that

Congress may reasonably restrict the political ac-

tivity of federal civil sefvice employees for such. a

purpose, Wnifed Public | Workers v, “Mitchell,” 330

U. S..75, and a Staté is not w ithout.pow er to .do.as-

muchO course, Mitchell revolved largely around,

a First Amendme i sfument and the “court dis-

cussed it extensively beginning 0 on m 95. It was not

‘necessary for the court to repeat this entire dis-

oars Ve A te

cussion in Garner. Employees are driven to’ arguing

' that the Court erred in relying upon Miteheit-and

' that. the fact that the City of ‘Los Angeles could

impose syich an oath on its civil servants. does not

mean that .. Washington could impose one on its:

state employees. (App. Br. ‘p. 53)

The Employees have obscured.the precedential

value of American Communications Association v.

Douds, 339'U. Sz 382, by” lurgping the two oaths now

before the Court together. The 1955 statute has no

more “prescribed a state of mind”.( App. Br, p. 122)

than has the statute involved in Douds. In fact, if

Employees are to satisfactorily distinguish Douds

_ they mist be prepared to argue that Congress. can

impose a civil disqualification to prevent political —

‘strikes but a state cannot do as much’to combat

subversion.

Hencé, Employees’ attempts to distinguish the

- foregoing cases are, we submit, _ unsuecessful. —~-

May the state make the inquiry required , by

the 1955 Act without violating the public employee's

First Amendment rights? The Answer must ‘be in

the affirmative. Adler v. Board of Education, 342

U.S. 485, Beilan v. . Board: of Education, 357 U.S.

399, Garner 1. ‘Board of Public ‘Works,.341 U.S

716, Empioyees’ reliance—see “for example, page 64

"a1 appellants’ brief—upon Sweezy. v. New Hanip-

owe

shire, 354 U. 5! 234, is strange, since the petitioner,

' Sweezy, wilitnaly answered questions ° which were

i to the statements veqnfiréd by

the 1955 statute. Sweezy denied that he had ever

been a member. of the Communist Party or that he

had ever been a part of any. program designed to’

overthrow the Governinent of the United States by

force or by. violence.’ Thus, the question. whether a

person could ‘be constitutionally compelled to-answer |

‘such questions. was not even before the Caurt. 354

U.S. at 239. Questions which Sweezy was directed

to answer and which he declined ta answer did not

reiate to his membership in the Communist Party |

‘but to his membership. in other political organiza-

tions, his knowledge ‘of the “associations of other

‘ persons, statements he made in his tlassroom, and

his belief’ in Communism, Some of the questions

~ were as s follows: eee a as

2. “Was Nancy Sweezy ew: Ww coker with

. individuals who’ were therf members of. the

‘ Communist Party?

“Was Charles Beebe active in. forming the

Progressive Citizens of America? ,

. “Did-he work with your present wife—Did -

Charles Bee&® work with your present wife in

'194¥?

“Did it: (2a meeting at the home of Abraham

ps Walenko i in Weare during 1948) have anything

‘to do with the Progressive Party?

“- “What was the subject of your lecture?

‘“Didn’t you tell the class at the Univ ing |

of New Hampshire on Monday, Mareh 22, 1

that Socialism was inevitable in this eh Me

“Did you advocate Marxism at that time? -

ag . “Did you express the opinion, er did you

/ make the statement at that time that Socialism

was inevitahble-in America? :

. to aay in Communisrn?” 354 WS.

28,24. 7 | ;

Because of his refusal to answer these questions,

; Sweezy was convicted of contempt. His convic-

tion was affirmed by the New Hampshire Supreme |

Court. On appeal to this Court, the conviction

was reversed. This Court did not hold New Hamp-

shire’s Subversive Activities stdtute unconstitu-

tional on its face. The opinions deal. with the

broad nature of the-questions asked by the Attorney |

' Gene e questions, four justices held, were im-

- proper neous it was not clear that ‘they were

authorized by the New Hampshire legislature. 354

U.S. at 253. No constitutional question was decided

‘in the opinion signed by these four justices. .

Two justices held that the questions infringed

_upon Sweezy’s constitutionally protected and aca-

demic politicat-freedems, but_ they recognized . the

.. distinction between questions concerning member-—

ship salle Rimage Party and questions concer a-

ing meré academic classroom references on Marxism,

socialism or even communism.

‘Whatever, on the basit of massive proof

_ and in the light of history, of which this Court.

“may welP take judicial notice, “be the. justifi-

cation for not regarding the Communist Party :

as a conventiona! political ying no such justi-

\__ fication has -been afforded in regard to the

Progressive Party.” 354 U.S. at 266.

TAe questions were quite different from the state-

ements required “by the 1955 statute.

Nor does Skelton v. Tucker, 364 U. S. 479 cast

a Shadow on these cases;for, in that case, on page

485, footnote 4, this Court said, “The actual holdings

‘in Adler and Beilan, involving the validity of teach-

ers’ discharges, are not relev ant to the present case.’

Uh tease a

. é

‘

8. .

~The Employees’ only hope ‘is for a reversal pf

these cases. But the-trend js against.them. Barenblat?

. UL S., 366 U.S. 109, 125-134; Wilkinson v. U. S.

365 U. 8. 399; Bradenv, S,,.365 U. S. 431; Com-

munist Party tb. S-AC.B., 867 U.S. 1, 96-103. The

‘lower court was correct be pointing out that, “It

cannot Fe tjuestioned. that a state has power to safe:

guard the public“service from disldyalty ; ang: the.

right, of the state to inquire of “its employees con- .

cerning their loyalt¥ has. a bee recognized in a num-

ber of cases:** (KR. O75 SSIS ie oa wae

Regarding the form of the inquiry, the lower

court held ( (KR. 244) that there ig.no violation of First:

Amendment rights: simply because a written forni is

vised rather than an oral form, such. as was used in’

Bedan. The key question is whether the written

fort is: limited to the area of legitimate state

concern. ‘ ‘The. lower court added, “In an ‘ins stitution

as darge as Phe University of, W ashineton, to con-

duet personal interviews of ial present and prospec- ;

tive employees concerning their loyalty. would be

pig iconanisobe burdensome. and nught be subjget

& Jabuses. “in heu of such inquiry’ the university

saisiais aes elected: to require fj swdrn stateméni,

narrowly limited: tg the precise matters of legitimate

state concerti. So limited, the oath Serves the sams

purpose as individual inquiry. wR. 24h) 0 #

The First Aniendmentar gumen tot. " hether <he

inqui ry tal te made should he : tr eated separate ¥

_ from, the Fourteenth Amendment argument

o oo - an = ‘ y . ies

« wot

41 aie

‘whether dismissal. can be carr ied out on the basis

of the answer or lack of answer given.—

THE 1931 ACT Doxs Nor VioLare THE First

AMENDMENT. ai

, It cannot be denied that West Virginia State

Board of Education v. Barnette, 319 U. S. 624,

~-would place. in doubt the constitutionality “ the

_ 1931 Act were ‘the oath required by that act to be

‘taken by students. Only Agachers need take this

oath, however. cae “

The state has a legitimate interest in seitine

“@ up qualifications for its public employees, though

to do so incidentally affects free speech: In Barnette,

‘as in Speiser v. Randall, 357 U.S. 513, the state at-.

tempted” to. set up a ¢ertain requirement. affecting

a broad Segment of the public. ‘The societal need |

for qualifications on the part of a particular grouyr

such as teachers or labor leaders is greate r than the”

need with regard to the geneyal public.

~ The efficacy of an oath such as thé one. required.

by the 1931 Act is ancther matter. But may not a 7

legislator reasonably believe that a teacher who signs

‘such an oath w ould be slightly more inclined to teach

in such a-manner as to inspire pe triotism anil loy-.

-alty than had he not signed the cath? The answer

must bein fhe, affirmative. 3 :

Pane

THE 1955 ACT IseNOT AN. Uy NCONSTITUTIONAL PRIOR

RESTRAINT: - ” : . — a

Citing Shelton x. Pheker, sae U.S. 479¢. as

authority, Employees claim tha $ the 1955. Actris

a ~~ et ae

soy “« °

- « ig : ° . *

Sif

Uae |

void -as.an unconstitutional prior restraint. on| the

grounds that the legitimate state interest could be

“more narrowly achieved by less drastic means.

3 - Employees rely on Speiser v. Randall, 357 U.S.:

513¢q( App. Br. p. 139) This reliance is misplaced

for @ page 517, footnote 3, this Court’stated:

‘Appellants’ also argue that these previ- :

sions are invalid. * *..*- as-invading lib-"_

erty of speech *°*. * Our disposition of

the cases makes consideration: of these —

_ unnecessary.’

A prior restraint is not; _ ipso facto, unconsti-

tutional. Times Film Corp. v. Chicago, 365 U.S. 43. |

But it is true that this Court will not, allow: a state

to abridge “certain ‘liberties where no, ‘subs antial

state interest is involved by-lumping such a measure

with a measure combating subversion, a legitimate

state interest. Thus a claim that an Arkansas

statute is justified because of the right of a state

to investigate the competence and fitness. of those

whom it hires to teack in its schools cannet be used

. -as a cloak to cover the attempt of a state to discover

_ whether a, ieacher is a. ago of the N.A.A.C.P.

-< Shelton v. Tucker; 364.U, S. 479. Nor can one mak-

ing inquiry pursuant to the investigative powers of

a legislature, and again-in the guise of combating |

subversion, force an answ.. as_to belief abstract -

advocacy of. sas the like. Sweesy v. New

Hampshire, 354 U.S. 234. —

3 Employees. claim that “the- ‘question is whether

a fair method 8 been established, ‘f App. at. 3:

43 °

140), and “this Court-has held dist the state inust

. achieve its legitimate purpose by the method havi ing

‘the least impact on First Amendment r ights?” (App.

' Br. p. 144). What is the. author ity for this claim? |

. ** It can hardly be contended that Shelton v. Tucker,

364 U. S. 479, is author ity for the proposition that

a tnkaber is unconstituitonal if the human mind can ..

devise any other means of carrying.out the state’s -

legitimate purpose with less restriction of specch ;

this Case~ix not nearly so extreme. To go to such

‘extremes would be to place an impossible burder’ on

“the legislative bodies. .Not one of the oaths upheld.

by this Court would be valid if this Were the test,”

since reflection suggests ‘changes which would bring

them into sharper focus. Certainly the Employees _-

paraphrase is a long:way from the language used in’

Shelton: “The breadth of legislative abridgement |

‘must be viewed ‘in ‘the light of. less Sreatic mameeat )

for achieving the same basic purpose.” ( 364, U.

at p. 483) if :

It can be argued that the sdministrative’ pr 0-

“ore ‘am provided by Section 12, chapter 254, Laws: of

Washington 1951 allows the unscrupulous adminis-

trator more latitude.with the consequent danger to.

constitutionally guaranteed liberties than does the |

oath. requirement. Yet, Employees claim that this

procedure. is “less drasti¢ than the oaths.” (App:—

-Br. p. 140): But even assuming that. the. alternative

procedures are less. drastic, the questior is not which

method is-most preferable, the question is whether

44 Ld

the alternative: ‘procedures: available create a coristi-

’ tutional barrier-to the oath gequirement. A legislator

_ might well feel that a statement of Harold W. Dodds,

ae President Emeritus of. Princeton University i is as ap-

plicable to loyalty as it is to scholarship standards:

“Many presidents feel that the case for -

academic freedom would be stronger if’ the °

t academic profession’ were ‘to match its protec-

' tive activities by a more positive role in disei-

plining colleagues ‘who violate ‘professional ~

_ standards of teaching and scholarship or who

_are guilty of incompetence, irr esponsibility. or

‘ downright neglect-of duty. * * ”- 28 Law

and Contemporary Problems 605. Arron

How has this Court applied the. “ovér-broad”

test when dealing with past cases? segs

In American Communications: ‘Assn. v. Douds,

339 U. §. 382, this Court upheld a sat which is

a far ery trom the “selective” administrative pro-

grams referred to by the Employees, : ‘The oath pre

vision affected union officials of almost all labor or- ‘ °

ganizations of any appreciable size. It did not affect

only those sectors with a history of political BE ERES.

The oath: requir ement ‘applied to “each officer.” (81

Stat. 146. eh 120, 29 U,S.C.A.159¥8) ). The same

“ty pe of blanket requirement characterized Los Agi-

geles City Ordinance Na. 94004, which, was upheld

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

241.0, 8 TG... pecan |

If these so, requirements are: valid,. no dis-

tinction can be found tq justify Employ ees’ assertion —

that-an administrative pregram is the constitutional ¢

“maximum permitted the Washington Legislature. °

ee a

/ _

oo, ‘ : van ue 7

<= “and other s similarly

3 , tothe accra gore

“State administrative-programs in general have

~ not been enforced. (Brown, R. S.,Jr., Hoyaity and,9) 9 *

Secarity Ys p. 99) Nothing in- the record. indicates.

that Washington i is an exception. etek

The Washington legislature, then, is ; not bound , Soe

to rely upon only a “hit or miss*-administrative aye eens

tem. The legislature could legally enact a blanket Eats

minimum'requirément in the form of the disclaime: -

oath. (The Court is ‘Feferred to Past VI VLrelating :

sseacintions of ° Shaders: within ‘its <a This

discussion is applicable to the pr lor restraint ee.

tion as well.) Pat Ne See feats

THE OaTHS Do Nov VioLATE THE FIRST AMEND- ee Was

: ‘MENT GUARANTEES ON Ret 1G iON. <«- ee eae

= -The Washington oaths ere not “prayers,” nor__-—

: “do they_constitute-by any stretch-of the imagination rots us:

; a “purely religious function.’” But this does not ;

sati

hv Employees. Théy claim: :

“Should-this Court choose to follow this

distinction, characterizing the 1931 and. 1955 __:

oaths as ‘secular,’ then we submit theterroath |

¢ statutes are_unconstitetional_as fo all appel- = -»"

situated. iff that they _ 3 ee

prohibit their free exercise of religion amt cop- > me aa

sciences and force them to abridgé their con- ° —_—

sciences, and that this is particularly true of a

appellants Matchett and Or ans.” (App. By

Tol jink in 1931 Oath bf Allegiance statute With sew Ze Erte

a denial of religious: freedom is also an untenable 9

; - . ay. oa “eo? : ‘

0 " : / : ‘ . ae

. . P ¥ > .

ss : J we }! . bs

ore a 2 - : 4 .

. .

. “ . . bd ; ,

Be, es pit .

. argument. The Seclia Court in Engel v v. Vitales - :

"370 U.S. 421, carefully distinguished exprihsions :

of patriotism from official prayers. | Saag

“There is of’ course nothing it the decision .

pos ti heré that is inconsistent With the fact

that school children arid others are officially en-

couraged to express love for our coyntry by .

- reciting historical documents such ‘as the Dec- — *

laration of Indepentience which contain refer- >

“ences to the’ Deity ar “by ‘singing officially ”

‘espoused anthems which includes the Bicaneasr’ ’s

. professions of faith in a. ‘Supreme: Being, or, ‘”

_ with the fact that there are many manifesta-

‘tions in our public life of belief in God. Such ~~ °

patriotic or ceremonial oecasions bear no° true «.

» -. resemblance to.the unquestioned religious exer-

' ‘cise that the State of New York has ‘sponsored «.-

> in this instance.”. — U.S at page 435, ‘toot

_note 21). | :

> Re Summers, 325 U.S. 561, supports the vail S

it of the 1931. Act. There, where a bar applicant. a

had refused to take an oath to support the state. 3

- constitution, this Court held ‘it was nat. tinconstitus ‘

. tional for the state to deny him-admission to the bar.

_ This-Was true even. though the state constitution’ had —

‘a “provision! requiring service in the militia in time

“cof war. The applicant had’ ‘refused’ because a hie <

inwillinghess based on personal scruples to serve Se

-in the state milifiain timeefwar. ~ 0 e tee

‘ If a state can refuse to allow ; a person t6 prac-.

Ho _ tide law on this ground, surely a state can demand

ofa é teacher, as.a condition of — mentt, the 1931

- oatlh Be Se eel

THE “ecrigaior TO BE. PROTECTED Is Su BSTANTIAL..

‘Perhaps the most crucial part. of Employees’

' First Amendment argument concerns the lick: of a

Sepcietal interest. ta.justifyythe 1955 Act. The Em- .

: ployées must show ‘that the societal interest is not _

* pron as in West Virginia. State Board of

. Education vi, Barnette, 319 U: S."624. Erfiployees’ ”

‘ must. seméhow get around the two teports..of the’...

. "Joint Fact-Finding Committee on Up- American he:

|. tivities.” This they have’ attempted to'do by ¢laiming. seg

ce that parts of the report.are false (App. Br. p, 119%,

,and by. claiming that the lapse of. six years frém the

report’s filing sto the 1955 Act ; ‘is too long for’-the

* & findings {8 support. the 1955 Act: ( App: Br. p: 120) .

‘The Second Report Un-American Activities in -

Washington, 1948, deals, in the main, with the Unix’

_ versity of Washington. ‘lt would seve no purpose

_to belabor this point. It isa part.of the record. W hen .

_ one considers that the reports comprise several hun-.

dret pages, it is surprising .that Employees can . -

; question. anly ‘a small percentage of its contents. +

_ bulk of the reports stands undisputed.

There is: no blanket. requixement “that every

piece of legislatipn dealing. with subver sion ‘bée*pre-

- ceded by legislative findings, but it cannot be doubted

bar ‘valid: findings often strengthen’ the legislation :

en its constitutionality is ealled into question. Af-

| Wa -reciting-certain legislative findings on the natyre

of the communist movement | too lengthy to be re-

* ported. here, thie Court in Communist Party».

SAC:B.; 367. U. 8. 1, 94, said’. ; ne aah,

438 ©

“It is not for the courts to re-examine: the

validity: of these legislative findings, and re-

ject them. See Harisiades v. Shaug nessy, 342

-, > US 580. .They'are the product of extensive in-.

. °. ‘i vestigation’ by‘ committees of . Corigress. over

more than decade and a half. Gf. Nebbia v.

New York, 291, US.502. We certainly cannot

. dismiss ther as unfounded or irrational im-

- aginings. See Galvan v.- Press, 347 US 522;

American Communications Asso. . Douds, 339°

Re: eh et

Nor wili;this Court give lens weight té findings

‘of a state legislature which come to the Court ,“‘en-

_ cased, in.the armor . wrought by prior: legislative

deliberation. ° Br idges vw. Calif., 314 U.S. 252, 261.

3 ~ Conceding, arguendo, that. Zeonditions could a

change to such a. degree _ as to vitiate a legislative

finditig, the dangers’ resulting from.the communist :

“movement referred fo in the Joint Committee's re-

port (House Journal 1949, p. 1095 et seq.) have. not

disappeared. This court has, in effect, recognized | _ |

this “fact by deciding the Communist Party case,

supra, on June 5,-1961, although it was based on

legislation dating from 1950 to 1954. Subversive

activities legislation was, passedin 1947,,1949, 1951, :

i963 and 1955 . Argument that any of this legislation’

is invalid because additionatiegislative findings were —

not made after 1949 seems strained, to say. the least. ~

The "Reports of the Joint Fact-Finding Com-

mittee reinforce what this. Court should decide in

“any event: There i is an interest of the. state in self-

preservation which justifies the aetion of the legis-

lature. After this ‘Court's decision i in G arner, Adler

/ os

» 6

and Diuds, all oupre: it is.apparent that Employes ; =

do not have a valid argument regarding the lack of ©

- societal interest to be ‘protected; their argument, if

any they- have, must bé that the means sea to pro-

tect this interest are unconstitutional. bse at?

- Once it is decided that the state has a ‘legitimate

interest in not keeping in its employ. subversive per-

sons, as they are defined in the Subversive Activities

_< Act, as amended, there can be, no question of nexys;

_ for however much one may argué that hardened gub- . *

__versives waquild not hesitate to sign such an oath thus .

leaving the man of. conscience as thie victim, the fact |

is a legislator would be perfectly justified in believing :

that the disclaimer oath, would have a substantial

-deterrent éffect since the criminal sanction might

give the subversive employee or applicant pause.

“There i is. some. support for this view,” writes Pro-

fessor Ralph S.. Brown; “in the history of New York:

- inv estigations into the loyalty of publi¢ school soon er

ers. Some of the Witnesses, who in the early 1940's

-denied communist affiliation before the Rapp-Coud;

_ ert committee, ten years later found it advisable to .

_ plead the Fifth Amendment in response to similar .

‘questions from the, Senate Internal Security Sub.

* committee. > One proffered "explanation: for this .

change in. tactics is the availability of sufficient gov-

ernment witnesses in the current investigation to |

make, a criminal prosecution for false swearing

_ stick.” Brown, R. S., Loyalty and Security, p. 94.

Regents. would not even make reference -to the .

- discussion (App. Br. p. 142): of the policy .of ‘the

‘

at ee 50

University o of £ Washington sapietins sinter onthe .

campus—it being not only outside the’ record but . °

irrelevant as. well—were it not for the fact that it is

incorrect; the policy referred to was terminated by

resolution on January 24, 1964, by the Board of Re-

gents, a date subsequent to the publication’ of Appel-

lants’. Brief. a9 ee af

-PART VI

THE 1955 ACT AND THE 1931 ACT DO NOT

-" . VIOLATE THE FOURTEENTH. -

° AMENDMENT ©

THE EMPLOYEES WHO REFUSE TO SIGN THE Dis.

_ CLAIMER OATH ARE upreiae ENTITLED TO, A

HEARING. -

. Employees’ argament that the 1955 Act ‘vio- |

lates procedural due process in’ that it does not allow

‘a hearing seems to have three bases: The Washing- .

ton Supreme Court allows no heari ing to non- tenured. -

personnel and a sham hearing tétenured. personnel; —

- no statute allows such a hearing, and the officials

chiarged with administering the acts will allow no

hearing, save. the sham hearing resulting from the :

‘Washington Supreme. Court’s detision.

It is true that the statutes, court decisions, and

administrative actions are the key factors, but Re-

gents submit that they lead to the opposite. conelu-.

sion.

The Employees, it t will be noted, fall into th ee’

different categories: those with academic tenure:

those with classified civil service tenure, and those

with no tenure at all, save possible contract rights.

* :

« aa

a Peo? ih

ae Pi heat “Maas eR ION

The Washington : Supreme Court has squarely held

that those with academic tenure are entitled. to a

hearing. This has driven Employees into the extreme

_' position of ciaiming that the Washington Supreme

Court sanctioned a sham hearing (App. Br. p. 172),

‘a position which scarcely deserves argument. .—

With regard to the other two categories. no such

categori ic answer can be given since the Washington or

high court haswnot spoken.

‘First, what i js the rule, regarding persons. with —

academic-tenure? After Nostrand v. Little, supra,

was remanded by this Couft to the Washington. high.

court for determination of whether the pr ofessors

would be accor ded a hearing, counsel for the profes- -

sors argued that under law no hearing could be

accorded to the professors. The state: attor ney. ar-

? gued to the contrary. In its decision the court held:

“We are of the opinion that the vrovision in

the subversive activies act to. the effect that re-

“fusal to take the oath ‘on any grounds’ shall

be cause for ‘immediate termination.of emyloy--

- ment,’ should not be interpreted in ‘the -case_

- before us as meaning that a full professor hav-

ing tenure rights-under his contract of-employ- ‘

* ment is deprived of the right to a. hearing. as

provided in the rules and regulations of. the

university. ‘In other words, if the professors

should refuse to sign the affidavit (which they

have not yet refused to do), they, in our opinion,

will be entitled to the hearing before the tenure.

committee and to the other procedures relating

to termination of employment pres¢ribed jn the

- university’s: rules’ and régulations,’ set forth in

_ the appendix to this opinion.” 55 Wr. (20) at

p. 131.

eS +

y 52

_ But wheat, of leveeuin without: sendentic jimeidt

* Employees’ argue that under Nostrand a. Little,

supra, neither the Civil Service Act nor the Adminis-

t: ative Procedures Act could be used to accord Em- :

ployees a "hearing; ‘but ifi fact, . the question of

whether persons without academic tenure could —

take advantage of éither act was not before. the court.

“On page 121, the Washington high court tried to

. preclude just such @laims by stating: “We, of course,

: Jimit our consideration of tie problem to the facts

before us.’ ek

The real thrust of Nostrand v. Little, supra, is

. the-fact that the court there-held that ‘a professor

with tenure could.not be discharged under the 1955

Act-alone and without reference to any other statutes.

”

If the court construed the 1955 Act with RCW. 28-

.77.120 and 28.77.130 there is every likelihood that

it would eonsider other statutes if the last quoted

statutes were not applicable this would be the case if

a person were ‘without tenire.

' The two statutes are the Civil Service Act,

(chapter 1, Laws of the State of Washington 1961)

and the Administrative Procedures. Act (chapter

234, Laws of 1959). It_should be noted that both

acts became law somé years after the 1955 amenda-

tory act. i.

It is well to considet the Civ il Service Act first,

since it appears to apply. to some of the non-academic

employees who are among the appellants. . (The -

record does not show that each non-academic em-

. ee

Ree See

3 The - Washington Supreme Court has sliced held |

that those with academic tenure are entitled toa

hearing. This has driven Entployees into the extremé —

position of claiming that the Washington Supreme

Court sanctioned a sham hearing (App. Br: p. 172),

a position which scarcely deserves argument, .

With regard to the other two ‘categories: no such

categoric answer can be given since the Washi: zton

high court has not spoken.

‘First, what is the rule regarding, persons with |

academic tenure? After Nostrand v. Little; supra;

was remanded by this Court to the Washington high | .

court for determination of w hether the professors —

would be accorded a hearing, counsel for the profes- «

sors argued that under Jaw. no hearing could be

‘accorded to the professors. ‘The State attorney ar;

gued to the contrary. In its decision: ‘the court held:

. “Weare of the opinion that the provisign in

the subversive activies act to the’ effect that re-

fusal ta take the oath ‘on ‘any grounds’ shall ’

be cause for ‘immediate ter mination of employ-

-ment;’ -shduld not be interpreted in the case

before us ds meaning. that a full professor hav-

ing: — ‘rights ander his contract of employ-

ment is dpprived‘of the right to a hearing as

’ provided the rules and regulations of the

university. In other words, if the professors

should refuse to sign the affidavit (w hich they . ,

will be entitled to the hearing before the tenure

- ,-committee and to the other procedures relating

‘to termination of employment-prescribed in the

university’s rules and regulations, set forth in

- . the appendix to this opinion. 58 Wn. (3a) at

P. 131, .

P .

yi)

before us.”

| 52

But what of | persons without academic tenure?

°—E Employees’ argue that undér Nostrand v. Little,

supra, neitherthe Civil Service Act’nor thé Adminis-

“trative Procedures Act-could be used to aceord Em-. -—

ployees a hearing; but in fact, the question of

_ Whether persons. without academic tenure could |

“take advantage of either act.was not before the court.

On page 121, the Washington high court tried to

preclude just such claims by stating: “We, of cgurse,

limit our consideration of the problem. to the” facts

. co . \

The real thrust of Nostrand v: Little, inee, is

_ the fact that the court there held that a professor

with tenure could net be discharged under the 195%

Act alone and without r eference to any other statutes,

If the eourt construed the 1955 Act with RCW, 28."

. 77,120 and 28.77.130 there is eveiy likelihood that -

it would consider other statutes if the last quoted

, Statutes were not applicable this ‘would be the case if.

- a person were without tenure.. :

The two statutes are: the Civil Service Act.

" (chaptr 1, Laws of the State of Washington.1961)

and the Administrative Procedures Act. (chapter

234, Laws of 1959). "It should be noted ‘that both

acts beeame law some. years after the 196 55 amenda- sie

tory act. (res , .

It is well to consider the’ ‘Ciyil Service Act first,

e. | ! _ since it appears to apply to some.of- the non-academic |

record dees ot show that each non-academic em-

. vo ee F : : : AS os : kat

- ployee would come under the exceptions to civil serv-

ice coverage Kisted in section 5.). Section 5 5 provides

“in part as follows:

“At each tnatitution of higher iecichen: the ‘o

. governing body shall within thirty days after

December 8, 1960 designate three of its mem- —

. bers as a permanent personnel committee, com-

pensated and“reimbursed as provided in RCW

41.06.110, to enforce and perform for all its non-

academic personnel, except those in positions -

specifically exempted ‘by the governing body on

analogy to-the exemptions of * oan!

. _ The extract from the minutes of a “meeting of

“the Board of Regents on December 16, 1960, shows _

that the following action’ was taken:

“It was noted that the civil service ‘initia-

- tive whith was approved by the voters on No-

vember 8, 1960, became laws on December 8,

- 1960, and has legal application to the University

of Washington. Under this law the. Béard of

Regents is required to appoint three of its mem-

‘bers ‘as a Personnel Committee to administer _

‘the provisions of the law on the campus. This .

. Personnel Committee »will serve as the Univer-

sity Civil Service Board. —

“Attention was also called to: the fact that

there are several items in the law which require

action by.the Board at this meeting, since : such |

action must be. taken before January 7, 1961.

“These are:

“That by January 7, 1961, the Board of ~

* Regents shall select three .of ‘its members to

serve as a University Personnel Committee for

_ terms: of tw o, four and six years (appointments

‘thereafter to be for six-year terms) to admin- |

ister the provisions of the Ae 3

“That by’ January 7, 1961, the . Board of

as takai shall designate a full time nonac ademic

Oh a

* Pe og ee

ree ;

2 ot

STE a SA er

employee’ to serve as Director of Personnel to

direct‘and supervise the Personnel Department —

‘and to popere for consideration by the. Uni-

vérsity Personnel Committee proposed ruiles and

_ regulations requiged by the law. ~

_ “Upon the recommendation of ‘President ;

Odegaard, the Board appointed Mr. -Reginald

_ Root go serve’ as Director of Personnel and.

- named the following members of the Board of.

. Regents’ to serve as the University . Personnel:

‘Committee for terms of two, four and six years,

respectively :

- “Regent Robert J. Willis, Chairman (two .

years )

“Regent: Hayold S. thiefelean, Vice. Chair

. man (four years),

“Herbert S. Little (six wean): "

The University Personnel Committee adopted. a

number of rules on October 27, 1961, including Rule °

,_ XIV. This rule makes applicable to those under. its’

jur isdiction the provisions of sections 18, 19, 20 and .

21 of the Civil Service Act, which _provide sor:

_ hearing procedure. or

But what of those Employees who are covered

by neither civil service tenure nor academic tenure”. —

That the Employees are hard pressed to find a reason. . .

why a hearing would not be granted is evidenced by °

the: manner in which the Employees have empha- *

. sized certain portions of the Regents’ statement.

a App. Br. p. 172.) A.reading of the document simply

indicates that the Regents intend to follow the law,

it dées not indicate that under the law no hearing

; would be accorded tan employee. Likewise on: page

173 of. their. brief, Employees’ have italicized the

. ” 4 ad

’

o”. «6 4

7 7 .

SBE

4 ‘

- F

r, f

BS.

. words “on any grounds” found in the 1955 iis: |

The effect would have been very different if, they.

had sitalicized the following three words, “shall . ~

_be cause for immediate termination . oe

(Emphasis supplied. ) There is, ‘of course, a great

i difference between a matter being a cause -for im- .-

ee mediate termination ahd a matter ‘which must result

absolutely:in immediate termination..

‘These Employees ave probably entitled a ee

hearing under the Administrative Procedures Act.

It is not a certainty because it has-never: -been passed

-- upon by the Washington Supreme Court: This Court.

Will, of course, assume that a statute will be inter.

preted by the highest state court in such a way gsto -

avoid raising constitutional - problems where such

interpretation is possible, “Fox, v%. Fox sprites 236 -

*. 108 S. 273.

- Until this is done it is the inteftition: of the s state

to allow a hearing on the assumption’ that it is better

to err by allowing too much due process rather than

‘too little. Nor is there anything novel about such an.

* approach. In’ regard to the third factor, state agencies ,;

have, upon the advi ice of the state attorney general,

on numerous: ‘occasions accorded a hearing to a party

on the basis of the Administrative Procedures Act:.:

where no specific hearing i is proviged by statute. An .

-——-

example of this is In re. Chrisiensen, No 84575

' Thurston County Superior Court, State of Washing-

~ ton. In this case the director of-licanses granted! a

hearing to an applicant who. had been efused as.

broker's license even though such a hearing was not

‘“

eae

. 06

specifically provided by the. Real Estate Licensing

Act (chapter 18. 85 RCW).

There: are undouttedly tingps-wheri a hoitcing

wild & seem appropriate. For example, if an individ-

ual a ttempted to resign from a subversive organiza-

a pe .

.. . tion by’ communicating with one- of the members, it

_ is possible this individual would not be sure whether :

’ his resignation was" effective, since. many, Oi sich

ris organizations not having membership. cards and lists. -

If such an individual were to ak for a hearing sb . a3

- tliat he ‘might explain the’ steps he had taken to

attempt to resign it seems probable that the hearing

would be allowed under Washington law and agmin- ee

istrative ‘practice...

; To wired on Yhis point,. Ridnts. ae not an :

that-a hearing is, ‘definitely required by the statute..

They need only’ show. that such a Fer ‘cannot.

be ruled ‘out, United. Gas Pipe Line Co. -v. Ideal

Cement Co., 369 U. §. 134, 136. The Sek bien

should not be permitted to profit from the uncertain- |

. ties arising from this action pecsuse of its prematur e°

‘nature.

-Sinee a héaring is probably ace ae under |

Washington law, it is pr obably not neceksary for aes

to rely upon cases upholding the inapositipn-of a civil

disqualification with no right to a hearing, such as

Board: of: Gévernei's of. Federal Reserve. System v.-

Agnew, 329 .U. S. 441, Gerende v. Board of. Super-

a visor cf Elections, 341 U. S. 56, United Public |

Workers v, Mitchell, 330 U.S. 75, American Com-

ee.

a”;

s vad eee ef

iO 8

e : ,; * ad

Ne 3

r .

a °

§ ° oa

o, .

|.* 5&7

munications Benet PPL Douds, 339 U. S. 382,

and Cafeteria Workers v. McBtroy; 367 US--886____-

How. migh this act provide such a hearing?. .

' Section 9 provides. in part: ‘In any contested case

all parties shall be affordéd’an an opportunity for hear-

ing after reasonable notice. * * *,” Seetion 1”

- defines a’ contested case as “** = * +23 proceeding:

-before an agen¢y7in which the legal Siete duties, or

_ privileges of, specific parties are required by, law or |

constitutional right to be determnied after an agency”

hearing.” ( Emphasis supplied. ), '

: Gnecchi uv State of Washington, 58 Wn. (2d)

". 467, 864 Py (2d) 225, a case. decided en bane a fer

{aout after Nostrand v. Little, supra, went beyond

what was strictly necessary to reach its : holding’ to

indicate that under thé Administr ative Procedures

Act, such an employee-w ould pe provided a hearing

ae thre lack of a hear ing would deprive him ‘Of acon:

-stitutional right. . The. court seemed to be follwing

‘ the’ Jead of this Court. (See W. Ong Fang Sung v:

McGrath, 339 U.S. 33.) | . :

One final uncertainty with refésence to ah dis: «

~ claimer’ oath should be: mentioned. The record ‘is

+ silent as*to the provisions of. any employment con-

tract. It is impossible to, determine, : ther efore,

whether any of the Employees would. acquire any

- hearing rights in this WA 5

; Wuertiy AN { EMPLOYEE Wuo Revuées TO o SUN THE.

‘OATH WOULD BE ENTITLED TO A Spucaioagisk

ip A MATTER, FOR CONJECTURE: “

~It cannot be denied that® literal reading of the

vies statute indicates that there is Jess chance thal __

‘a person gefusing to sign the oath it requires would :

--be afforded a hearing than “would be the case with” --

’ the disclaimer oathi; yet if the Washington. Supreme . 5°

‘#Court were tp read the 1931 statute in pari materia

with some other statute, such as the Civil Service

; would hardly be more surprising than that ‘court’s

holding ir Nostrand v. Little, 58.Wn. (2d) 111, 361

P, , (2d) 55 Pon the hearing issue. This leads: again

we the question’ ‘of whether the case is ripe’ for de-

“cision, w hether there is an actual controversy. (The

. Act or the Administrative. Procedures ‘Act the result -

Court is referred t#’Part. IV fora discussion of this ;

: 0 pha ee

: bec, hee Bieter

os { “s A . . ‘y

Mag ohn Act Dogs Not VIOLATE Constity TIONAL ;

1UARANTEES | AS TO 'V AGUENESS.,

In dealing vith this question (App. Br. pp: -186-

Age). Employees’ difficulty comes not ‘ffom ‘stating

the general rules but froni: attempting to apply we.

- general rules to this particular casey .

The oath. required, and: ‘the statutes on w which it

is based, are not unconstitutionally vague ; the tevin :

used therein are susceptible of “objective measure-,,

ment: = | ;

- Exhplay ees . have quoted no cases W hich ‘militate

against the. validity ‘of this oath. Cramp v. Florida,

59 Meaty ie

.. 868-U. S: 278, relied, upon by Stuaplapeee on page 192

of their brief is not applicable for the oath involved

in .Cramp ‘can hardly be compared with the oath in

_the present case.. Fhe former oath provides i in part,

“* '* *> that I;have not and will not lend my.

aid, support, advice, counsel or infldence to the Com-’ ;

- munist Party *.-* *”. The Court, itself, seems

to Have. distinguishedsthis case from Cramp. when, -

_ on- page 286 it pointed out that:

~" “The provision of the oath here in anton. :

3. it is to be noted, says nothing of advocacy of

‘ .

-* violent overthrow of state or ‘Federal Govern-~

ment. It says. nothing of membership -or affilia-

~ tion’ with the Communist Party, past,or prese

Thé‘provision is completely lacking i in these or

any’ other terms suscejitible of objective meas-

urement.”’” (Emphasis supplied. ) °

This Court denied certiorari ina case ‘involving:

alleged vagueness of the Obey Act w hich, as pointed

out earlier, is very similar to the 19: 51 Act. Shub’

cision based upon the Shkub interpretation. But even

more. Significant is the fact’ that this Court has af--

| firmed prison sentences—a far cry from this declara- |

tory’ ‘judgment procedure—stemming from. statutes *

yesembling the § Subvepsiyg Activities Act. One ex-

ample is the Smith Act, 54 Stat. 671, 18 U:-S; C.

2285 (Supp.), as amended.. The statute reads. in.

_ part: Foe ot ae is

- “Whoever Sauringty or - willfully adyo-

Pad i : a. . ‘

“Simpson, 196 Md. 177, 76 A. (2d) 322, 349 U-S. 861.

Also significant, is the fact, that this Court affir med

‘Gerende v. Bd. of Supervisors, 341 U. S. 56,-a. de-

Zee cates, abets, advises, or teaches the duty, neces- .

Z 60 ;

, sity, Bion or propriety of averthrowin

* or destroying the goverhment of ‘the Uni

States or the government of any State, Terri-

District or Possession thereof, or the gov- -

GArent of any: political subdivision thertin, by

f or violence. *

_ * “Shall be fined not more than $20, 000-or - |

bots not more than twenty years, or

this statute in the face of an allegation, inter alia,

that it was unconstitutionaHy vague.- In rejecting

: the « contention, the Court said: : |

“We: agree that the iniadiad: as defined is

verbalizations “it is subject ‘to criticism on the

scoré of indefiniteness * *

serves to indicate to those wh would agvocate

constitutionally prohibited conduct that there is

--a line beyond which they ‘may not go—a line

which they, in full know edge of what they in-

tend and the circumstances in which their ac-

- tivity takes place, will well as aa and un-

. derstand.”

Regents submit that if a- aicoinel statute, ae

make it “unlawful to— “advocate 56 he abet _

i e * ie 2. eae? et

~ the violent overthrow * * * of the gover ‘nment

of the United States, or the gov erriment of any State

* *. *” without doing violence to the principle of.

uncons itutional statutory vagueness, a state is free re

to require an oath in approximately those ternts with-

out doing vidlence to that principle. | ;

<P gE g PeIPmeet etertens cts oe

. .

| While to set forth other’ statutes would make

this brief unduly prolix, the Court is referred to the. °

statutes involved in Gitlow v. N. Y., 268 U, S. 652,

and Whitney v. Calif., 274 U. S. 357. This’ Court

refused to strike down oaths and the statutes upon

tionable than those in this case. (Garner v..Bd. of. |

| Publie Works, 341 U. S. 716; American Communi-

cations Assaciation’v. Douds, 339 U. S.. 382.)

It is not necessary to set forth the lower court’s

discussion relating to , Vagueness. (See, R, 245.)

The fact that a unanimous three-judge court found

that the meaning was not uncertain or vague—in

_ any event not. to the extent that the statute*must be

held unconstitutional—is: itself persuasive that the ot

statutes are not void on their face. The —_ er cs

pointed out that a persén taking: bthe oath, “*..° *

-is not required to speculate concerning the nee

bility of every conceivable or rare meaning of the

_ words employed.” He need only apply them to his

own case. (R. 246.) :

Although: the subject of ‘subv ersion is ; suscepti”

ble to coverdramatization, it should be pointed out

that based upon the history of other nations, a stat- -

_ ute would be of little use which included within its

ambit only those who participate in the putsch itself.

It must also include those who provide assistance by .

supplying weapons and the like. Second, an insurrec- -

“tion is not the work of one man and; as a result. a

statute, to be of any use, cannot include only those

who ‘alone carried out the attempted. coup d'etat.

i ie

ree would avail Employees little to attack the —

¢ word “revolution,” found in the 1951 statute as being —

... ambiguous by: claiming that “revolution”. could in-

volve a peaceful and constitutional change; this is so

_ beeause even if this ‘word were found unconstitu-:

tional, only: the word would be stricken under the

__ State high court’s ruling i in Household Finance Corp. |

"Ue State, 40 Wn. (2d) 451, 244 P: (2d) 260. The

companion words “force or violence” would remain.

The cases _ cited by Employees illustrate the —

general rule regarding vagueness. . Employees have

- cited’no cases—indeed, there are no such cases—to

show that the-1955 statute is vague. Thus the

parade of “horribles” they cite of, “any gang”, Lan-

zetta v. Ne J., 306 U.S. 458 “principally made up of

. crimipa! news, police reports or accounts of criminal

deeds or pictures or stories of deeds of bloodshed, lust’

or crimé,”’ pao si v: N. Y., 338 U.S. 507; “displays

ared-flag * * * ordeviceof.anycolor * * *

asasign * * * _of opposition to organized gov--

-erpment. * * *”,-Stromberg v. California, 283

U.S. 359, and “lend my aid, support, advice, coun-

sel or ” influience to pei Communist Party,” Cram pv.

‘Florida; 368 U. S. 2 , are ‘distinguishable from the

1955 statute. — | 7

— * - Oncee*it is determined that the statutes are not

.- void on their face, Fox v. W ashington, 236 U.S: 272.

is applicable, holding that the Court will assume that

a statute will be interpr eted by the highest state court -

‘in such a way as to avoid raising difficult constitu-

tional problems where any such interpretation is pes-

Neyo Seteicmegecnion Sy emey

sible. See also ShuttleSworth v. Birmingham Bd. af —

provides in part ¢hat, “Nothing in this act shall be

construed. * * “= tolimit or infringe upon free- |

. dom of the préss or freedom of speech or assembly ~

within the meaning and the manner as guaranteed

by the Constitution of the United ee oe

In order to judge whether either oath is a prior

restraint in -violation ofthe First: Amendment or

‘void for vagueness under the Fourteenth Amend-

ment it is necessary.to match the wording of the oe

oaths against the activities and associations of the

- Employees. The activities and associations of all

of the Employees are not set forth in the-‘record;

it is however, possible to assume that in the series aie

of ‘statements of several of the Employees (R.'188- —

218) the Employees have set. faith those associations

and activities, in their opinion, most. likely , to. be

considered Subversive.

Initially | it must be conceded that the Em- se

ployees’ statements to the effect that they do not —

feel they can sign either oath: for. reasons of ‘on-

scjence cannot be rebutted. The same is true of their -

belief that the oaths are illegal under the Federal

_ vonstitution and their belief. that signing the oaths

-. would subject them to perjury.: ‘But the question of

. whether the fear of perjury is well-founded is’ quite

another matter. It is not necessary to discuss the

‘ affidav its oné by one since the affidavits resemble

3 .

—

64.

: each other i in that the fear of perjury rests on a few.

types of associations and activities. These activities’

__are working: and exchanging information with schol-

ars of countries having a Communist government,

eS editing or contributing. to an international scholarly

publication and attending academic conferences held

under the auspices of a Communist government. The’

final activity which some of the Employees felt would —

subject them to perjury was discussing controversial

_ subjects such as the. Wieden, Pecanie of Communist _

China. (R. 204.) m4 oe fe

. The organizations listed. are nearly all inter na-

‘tional academic organizations.

It is clear that onee the opinions of the. Em-

_ ployees as tothe legality of the-oatk’and the wisdom.

6f the oath arespared from theirdffidavits the re-

_ maining activities and associations mentioned could

‘by no stretch of imagination result in a conviction

for perjury. (A hearing procedure is available, but’

Regents submit that there would be no risk of per- —

jury to Employees even if there; were no hearing

_ procedure to resolve doubis in the bor derline area.)

” The fact is that: the Employ ees would be remiss

in their duties in most.cases if they-did not belong .

to these international academic organizations and if.

. they.did not write. for inter national publications, or

if they did not exchange information of an academic

nature wit scholars in the ‘same field wherev er such |

ane scholars may. be found, or if they failed to dineries

- controversial political subjects, statutes and episodes

| - 65

in history in which, in the opinion of the sendin,

the United States acted wrongly. - There is no show-

ing that any of tht orPanizations to which the Em-..

ployees belong . “engages. in or advocates, abets,

: advises or teaches, or a purpose of which is to engage

in or advocate, abet, advise, or teach, activities*in-

‘tended to overthrow, destroy or alter, or to assist in

the overthrow, destruction or alteration of the con-

stitutional form of government. poe: seth (RCW

9. 81. 010(3) ) ,

-It-is trie that.two individuals claim they @an-

not sign the oath of allegiance because it wotld con-

flict with their foreign citizenship. .(P. 200, 215)

However, in Part VI of this brief Regents have

shown that non-citizens have not been requested to

sign the oath of allegiance in its statutory form, that: -

they are not at present required to dv so and that |

there is no indication that they will i in | the future-be’

‘required todoso. - 7 >

The point is made that some of the infor mation

gained by.a Communist government has possible

- military application. (R. 57) Admittedly, if the

- test were, does the exchange of information consti-

tute, aid, suppdrt, counsel or advice to the Cont-

munists, as was true in Cramp v. Florida, 368 U. S..

"278, the constitutionality of. this. statute would be ~

- more’ difficult to defend. This; however, is not the

* test, since the 1955 Act sets forth much more specific

requirements. .

Nor'can it be said that one - engages in the

activities set forth by the Employees “aids in the.

: conimission or advocates, abets, advises or teaches

by any. means, any person to commit; attempt to

commit, or aid in the commission of any act intended .

. to overthrow, destroy or alter, or to assist in the °

overthrow, destruction or alteration” of our con-

Stitutional form of government by “révolution, force,

or violence.” (RCW 9.81.010(5)) Where the Flor-

‘ida statute speaks of “lending aid, support, advice, ;

_ counsel or influence,” the Washington statute speaks

in terms of aiding the commission of specific acts of

; violence. Thus ‘it is clear that the actual threat of

gl perjury conviction is very different from the Em-

" ployees’ fear of. such convietion. 3 tl

' oS SPerjury requires a higher measure of pinot :

than any other crime known to the law, treason alone.

“ excepted.’” (State v. Wallis, 50 Wn. (2d)°350, 311.

P. (2d) 659 (1957).) After starting its opinion with.

. the above quote the Washington Supreme Court pro-

ceeded ‘to point out, quoting’ an earlier case, that

to conv ‘ict one of perjury:

"+ “ “There must be the direct testimony of at

; least one credible witness, and that testimony to - ’

be sufficient must be positive and directly con-

tradictory of the defendant’s oath; in additien

to such testimony, there must be ejther another

such witness or,corroborating circumstances es-

_ tablished by independerit evidence, and of such °

a character as clearly to turn the scale and over-

come the oath of the defendant and the legal

29% -presumption of his innocence. Otherwise the de-

_fendant must be sii ered . (50 Wn. (2d)

at p. 353)

- ee

“This igaioeidl of the Washington ‘Supreme

38 Court .as to the great quantum of proof necessary

~ to convict one of perjury underscores the lack of a

reasonable basis for the Employges’ expressed fear.

“THE 1931 Act Dogs Not VIOLATE CONSTITUTIONAL

: GUARANTEES AS TO VAGUENESS.

Employees assert, as if it were a fact, that “iny *

affiant who subscribes falsely to ‘the statutory oath

‘of undivided allegiance, in addition to loss of em-

ployment, subjects himself to possible perjury prose-

_* eution; ‘punishable by imprisonment in the state

penitentiary for not more than fifteen years (RCW

9.72.010, et seqg.),” (App. Br. p. 29) The statute’

cited: is. the state’s perjury statute. .

But is is not a crime to violate. the oath. The’

oath provides, “I. * ‘* * will ‘support .

™ ~ +

: .

‘and will * ° * promote. * * “*” It is thus’

promissory in form. It is not a disclaimer oath. One

promises to, do- certain things in the future. Can a~

.. Man go to jail for. failing. to car¥y out his promises?

No, according to any ‘legal authority. fe egy have -

| &

found. The rule is found in 70 €. 4.3 . 462, Sec. 6, .

Perjury: “A promissory statement ordinarily cannot

constitute perjury or ‘false swearing *.* *

ordinarily it is held that an official »oath cannot be

— the subject of perjury in so far as such gath i involves

statements purely promissory.” If the’ legislature .

had provided a specific penalty for breach of this

promissory oath the rule would not apply. The rule

_ is set forth in State v. McCarthy, 38 N. W. (2d)

679,686 (255 Wis. 234): i

a te

68 Re aes

: “The official oath to vilhich | the aesuicdait a

subscribed does not affirm the present existence

of a fact, and relates to the future conduct of

“the affiant. The affiant solemnly promises that.

he will support.the constitution of thé* United

States and the constitution of the State of ‘Wis-

_ eonsin, and that he will administet justice with- -

2out respect to persons, and that he will faithfully —

and impartially discharge the duties of his office.

Such an oath is called a promissory oath.

eS “Violation of an oath of ee does not.

constitute perjury as that offens is defined

in the law.

“In 1 Hawkins, PC, 431, ‘first published

in 1716, a standard text-on English criminal

‘law, the rule is tated thus:

“ ‘Also from what has been‘said it appear s

that the notion of pexjury is confined to such

~ public oaths only as ae

of fact contrary to nowledge of. the party ;

and therefore, it doth not extend to any promis-

sory oaths whatsoever. “*\| ~* *”

The. fact that it is no crime for a person to vio-

_late this oath is the death of Employees’ argument:

“that the 1931 statute’ violates the due process.clatse ,

because of vagueness. Employees have hot produced

one case where this Court struck dow na statute due

to vagueness itivolving a ‘sanction or, lack of Sanetibn _ -

comparable to the present case. On the contrary, the ;

~*~ eases dealing with vagueness involve a criminal sane-"

tion or sanction such as deportation even more di'as-

tic than many, if not most, criminal sanctions.

(Jordan v. De-George, 341 U.S. 223. See the anno-

tation, ‘‘Indefiniteness of language as affecting Valid.” :

ity of criminal legislation—Supreme Court cases,”

98 L, Ed. 374.)

m or deny some matter

« omed

rie ie alae a Cae

THE 1955 ACT AND THE 1931 Aor Do Nort ishjouve

_AN UNCONSTITUTIONAL SHIFTING OF THE Bur- 3h

_ DEN OF PROOF. *

Citing Speier. v. ROndall, 357 U.S 513, as au-

thority, Employees claim that the 1955 Act: involves

a denial of procedural due process in that it shifts

the burden of proof to the public employee. (App...

Br. pp. 182-186) - While the Employees’ argument

-might have - merit were the oath demanded ofthe

public in general, it has no merit where, ‘as here,

the oath requirement is directed to a specific. group:

..- to wit, public employees. A much more substantial >

societal interest éxists where.a state inquire’ into

the loyalty and fitness of its public: employees than ~

where a state inquires into the loyalty and fitness of

. vetekans, or members of a particular race or religion.

_ The petitioner in Speiser prevailed 7 in this Court

) because of an unconstitutional] alfecation of the bur- -

_dengof proot - ina tax exemption proceeding: This

Court went to great lengths to distinguish certain .

disclaimer oath cases involving a- specified. group ie

where the oath fequirement is backed up by a-sub-

Stantial state interest. Specifically, this Court on

‘page 527, with reference to‘Garner v. Bd. of Pub.

Wks., 341 U.S. 716, Gerende v: Board of Supervisors,

34] U.S. 56, and American Communications Asso-

“ciation vx Douds, 339 U. S. 382, said, “In these cases,

’ however, there was no attempt directly to’ contro!

- speech: but rather to protect, from an evil shown to be

“grave, some interest clearly within the sphere of gov-

\ .

¢.

. j « ° .

° > 4 ¢ p 4

ee, . /* Se

‘ ww? é >

‘ ° o. 4 2

. . . . . 4

, ' ee 4 *

. id - fs we

: ‘ ‘ “5

2 é

; 70 “Taga ae

oieieiad concern. On. page 528 the Court said,

“The State "argues. ‘that: veterans: asa class occupy a ;

position of special. trust and influence inthe commun-

ity, and, therefore any veteran who engages ‘in. the

proscribed advocacy constitutes a special danger to

the State. But while a union officiét er rv, publie em-

_ ployee may be deprived of his position an¢ thereby re-.

moved from the place of special danger, the State is Bi

. powerless to erase the service which the veteran has

rendered his country; though he be denied a. tax.

- exemption, he remaitis a veteran. The State, conse-.

quently, can act against the veteran only ‘as it can ZA

act against any other citizen, by imposing penalties

to deter unlawful ¢onduct.”’ The Speiser case, then,®

cannot bé used as authority'to support the claim that

the 1955 Act involves 2 deprivation : ‘without proce- -.

dural due process.

Since violation of the oath requir ed by the 1931 ia

Act is nota crime, the very-concept of “shifting the

burden of proof?’ would not seem to apply. A bare

‘promise, the breach of which involves no. criminal

sanction, would hardly suffice to shift the burden of

proof. |

3 ae é ;

THE 1931 AcT4NVOLVES NEITHER A DEPRIVATION

OF SUBSTANTIVE DUE PROCESS NOR A DE NIAL OF

EQUAL PROTEC TION UNDER THE Law.

_ By drawing aftention to. certain parts of the ;

> pre-trial order, Employees, on pages 102 and 103°

. of their brief, have ‘given the impression that aliens

are for ged to take the oath required by the 193 1 Act.

/ ‘\

71. ; Zoe i

; This i is “not! in fact, correct. This is not oe pravtice

; of. the University af Washington and nas: nét been — -

the practié. =. 0 vee x

' The pre-trial ‘order must he ‘ read a asa mele

Thus the statement of the President of,the Univer-

sity of Washington (R. 175-1 79) and another para-

‘graph of the pre-tr ial order (RK. 159) must be read

. along with. the portj

W here aliens are tr eated spe-

cifically. It reads, ‘For many years, the past prac- |

tice at the Univer}ity of ‘Washington with regard,

to teaching faculty who are aliens, and at all times

‘material to this. cause, has been similar to that sug- ,.

gested by the memorandum circulated through the ra

department of Matheniatics and reproduced below.”

(Emphasis supplied. ) The. memorandum “referred

to points out. that, “The last clause of the first sen-

tence which reads, ‘and undivided allegiance to the

; government of the United States’ may be replaced

by the phrase ‘insofar ds it is compatible with my’.

, citizenship’ _ Eat ENS ”” (R. 158-159).

_ Who can say what ‘other oath form Ww bul he “simi- -

lar”? Yet, on page 103’ of their brie , Employees

“actublly state, =? -""*. * the record is clear that

. an oath, perhaps. a modified 1931 dath,. Has alWays’ -

been requirad;of all: alien-professors. ett oes

‘This Court cannot pass 6n a “modifiél”’ oatl, which

wre

is ‘‘similar”’ to the one set, for thin the above memo-

* penta: One thing is certain. The'very word *modi- |

fied” means that..it is*not the 193 loath. | :

Thus,sEmploy ees’ claim that, this oath is ‘arbi-

‘trary aml herice void under the, @e process clause, + *

an 7

Q.. : &

ali s

‘ : 72 mh

‘in that it requires siioa to take i an oath of undivided

allegiance to the: United States, thereby placing them’>

yin the invonsistent. position, of- averring Jundivided

allegitince to one government ‘while retaining the - ;

- citizenship of ‘their native country, sam of its: own

es ae ot

It is’ at least arguabie that ‘the leplaiadats

7 intended ‘the words, “every person applying’ for a.

(fcenee to teach: °*. >,” to cover not, “ev per~

fson”.in the ° bindadeit sense but every person who

should’ owe allegiance td this couhtry. It is to be.

noted that: legislation. was énacted prohibiting aliens

-from teaching. in Phe. conimon schools’ (chapter 88,

Laws of: 1919, RCW 228. 67.010, et sey.) Three.

‘deeades"thter, chapter 32 Laws of 1949 {RCW 28-

67.020; ‘yart) amended, Section Y of the 1919 att |

to allow exchange’ teachers. in the public’ schools .

« “Irrespective of reqdirements respecting citizenship

and oath of-allegiance.”’ Neither, statute referred: to g°

institutions of higher educatign. This- demonstrates

“that. the Washington Legislature in 1949 assumed*

that the 1931. cact did not’ apply to, institutions. of

higher education. But; of courte, W hether the Jong- ‘

standing interpretation of the 193}... act by the ad-..: >

" ministuative agencies—even thought? is entitled to.

great weight—is the correct intébpretation, is, a

_, question for the state courts.

Employees claim (App: Br. pp. 100- 101) that

‘if the 1931 oath does not, apply to aliefis as w ell as

ac itize ns the latter have been denigd equal protection’,

“

. o

‘of the jaws. The question in all “equal protection”

cases is whether a reasonable basis for an allegedly’

.- unconstitutional classification exists. Phillips Chem-

ical To. ve » Dumas Independent School De ict, 361_

| Ba: 336 U. S. 220; N. y. Rapid Prar

- of New Yerk, 303 U.S. 573. The th

‘is‘not only reasonable but tends t

unfairness to alien employees withovt- in any way

derogating from °the-constitutional rights of non-

-- alien employees since the oath of allegiance as ap-

fe: { ° : .

a .

plied to them creates fewer problems.

: - PART VIL a ee.