Jurisdictional StatementO — Keyishian v. Board of Regents of Univ. of State of NY

Supreme Court brief1966

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Supreme Court of the United States

October 1

HARRY KEYISHIAN, GEORGE HOCHFTELD,

NEWTON GARVER, RALPH N. MAUD and

GEORGE E. STARBUCK,

ae Appellants,

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEW YORK, BOARD OF TRUS-

TEES OF THE STATE ITY OF NEW

YORK, STATE UNIVERSITY OF NEW YORK AT

BUFFALO, SAMUEL B. GOULD, CLIFFORD C.

FURNAS, J. LAWRENCE MURRAY, ARTHUR

LEVITT, DEPARTMENT OF CIVIL SERVICE OF

THE STATE OF NEW YORK, CIVIL SERVICE

COMMISSION OF THE STATE OF NEW YORK,

MARY GOODE KRONE, and ALEXANDER A. FALK,

Appellees.

On Dmror APPEAL FROM THE FINAL JUDGMENT OF A ‘THREE

Jupce Unirep States District Court Sirtine In THE

Western District or New York

APPELLANT’S STATEMENT AS TO JURISDICTION

RICHARD LIPSITZ, ESQ.,

Attorney for Appellants,

Office & Post Office Address,

One Niagara Square,

Buffalo, New York 14202.

SATAVIA TIMES, LAW PRINTERS,

BATAVIA, . v.

INDEX. 5

. F PAGE

Appellant’s Statement as to Jurisdiction ...... 3

„ os 66 sos idee steagcys eee N

Jurisdiction ........... rr sem die

Statutes, Administrative ane and Certificates In-

r diols catsteire «te enn 3

Questions Presented ..... Secaewebevve ke Poth! oa pee „liens

— Ge errg eye — —————— . 4

e re J. ln 10

Substantial and Important Questions are Presented 10

A. The question as to whether the New York statu

tory complex, together with the administrative

regulations, rules and certificates, unconstitu-

tionally condition public employment of teachers

and scholars at the university level in contra- |

vention of First Amendment freedoms ........ 10

B. The question whether the complex involved here 7

unconstitutionally deprives appellants of due

process Of lag 31

1. The lack of a hearing ........... G5 sant 31

2. The burden of proof is shifted .......... 38

C. The question whether the complex is a din of

attainde rr „„ 41

D. The question whether the New Vork complex is

an ex post facto ee „ 4a

Conclusion * sieeprherod e 45

Appendices .. .. . . leben 48

Opinion of Three Judges of Distriet Court (Moore, 3

Burke and Henderson) eee 9 4 „ é 685 48

Decisidn and Or deer. . 24 1

Opinion of Single Distriet Court J ais ee 71

Opinion of Court of Appeals for the Second Circuit 74

,. Statutes and Administrative Rules Involved 3 fis 70

Feinberg Certificate, Form a

II.

PAGE

Feinberg Certificate, Form.. 88

Resolution of the Board of Trustees of the State

— ̃ / ere 89

Preamble to the Laws of 1958, Chapter 50 91

Cases Cited : | 25 PaaS

Adler v. Board of Education, 342 U. S. 485 . .9, 17, 18, 19,

3 21, 22, 24, 26

Baggett v. Bullitt, 377 U. S. 360 3, 9, 24, 27, 35, 45

Baggett v. Bullitt, 219 F. Supp. 4339. 35

Bailey v. Richardson, 182 F. 24 46, 341 U. S. 918 21

Beilan v. Board of Education, 357 U. S. 399 .. 12, 13, 14,

23,

Calder v. Bull, 3 U. S. 386 7 — . 45

Cramp v. Florida, 368 U. S. 27282 3, 13, 21, 27, 30, 44

Cummings v. Missouri, 71 U. S. (4 Wall) 277 41, 42, 45, 56

DeJonge v. Oregon, 299 U. S. 3533333 25

Dennis v. U. S. 341 U. S. 494, 541 e ee 23

Florida Lime and Avocado Growers, Inc. v. Jacob-

rbb 3

Garner v. Los Angeles, 247 U. S. 716 . . 12, 14, 15, 22, 41

Gerende v. Board of Supervisors, 341 U.S. 56 . . 22, —

Gerende, Shut v. Simpson, 76 A. 2d 332 ............

In re Anastaplo, 366 U. S. 82..... Nannen 2, 37

In re Lithuanian Workers Literature Soc., 196 App.

Div. 262, 187 N. T. Supp. 612

Konigsberg v. State Bar California, 353 U. S. 252,

%;§«; »ͤö ˙²můũꝓ ͤä!ͤ. . 23, 37

Lanzetta v. New Jersey, 306 U. S. 41111. 24, 28

Lerner v. Casey, 357 U. S. 4688. 12, 23, 37

NAACP v. Alabama, 357 U. S. C

NAACP v. Button, 371 U. S. 41777. 28

Nelson v. Los Angeles, 362 U. S. 1. 12, 23, 33, 37

Nostrand v. Little, 362 U. S. 474, 368 U. S. 436 . 13, 34,

Nostrand v. Little, 361 P. 2d 551, 567 35397*

— United States, 367 U. S. 29111 26

le v. Gitlow, 234 N. Y. 132, 136 N. E. 317, 268

Pos. PCC iG "21, 23, 24

Shelton v. Tucker, 364 U. S. 47ꝶ 992 3, 12, 14, 46

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

GBI... .. el. ere en nete · 5 21, 32, 33, 36

Smith v. California, 361 U. S. 147. 228, 30

Speiser v. Randall, 357 U. S. 513, 526 ...... 3, 30, 31, 40

Sw v. New Hampshire 6 eee

Thompson v. Wallin, 301 N. T. 476, 493, 95 N. E.

a- Hin Secu ch ob $45 eee <teEs 58, 59

Torasco v. Watkins, 367 U. S. 41333. 2⁵

United States v. Brown, 381 U. S. 43... 43

United States v. Lovett, 328 U. S. 303, 315-16 ..... 57

Weiman v. Updegraff, 344 U. S. 183, 191-192 . 9, 13, 21

Winters v. New York, 333 U. S. 507 7̃7 24, 28

Statutes, Administrative Rules and Certificates :

New York Civil Service Law, Section 105 ..1,2, 3, 4, 5,

7, 8, 9, 15, 17, 18, 19,

20, 25, 26, 27, 29, 31, 38, 41, 43

New York Education Law, Section 3021 . . l, 2, 4 —

New York Education Law, Section 3022 .. 1, 2, 3, 4, 1 9,

15, 17, 18, 19, 38, 42, 43

New York Penal Law, Sections 160, 161 . . 3, 7, 18 19,

20, 21, 24, 25, 27, 38

Regents Rules, Sec. 244, Article XVIII .. I, 2, 3, „5, 15,

„31, 38

Feinberg Certificates A and B .............. 3, 6, 7, 9

Preamble to New York Civil Service Law, Section

JV ͤ Cctiee 27, 29, 38, 41

, ²⁰ B Bae sheen So toa C8 i (5 7s 9, 28

Miscellaneous:

Murphy, Academic Freedom—An Emerging Consti-

tutional Right, 28 Law & Contemporary Prob-

T.. ͤ A deen OE 12, 38

Morris, Baggett v. Bullitt: Scienter and Guiltless

(1864) Behavior“, 1 Law in Trans. Q. 185, 189

8 PERT TTT ey EG ry ee

IN THE

7 Supreme Court of the United States

October Term, 1965

HARRY KEYISHIAN, GEORGE HOCH FIELD,

NEWTON GARVER, RALPH N. MAUD and

GEORGE E. STARBUCK,

Appellants,

VS.

THE BOARD OF REGENTS OF THE UNIVERSITY

OF THE STATE OF NEW YORK, BOARD OF TRUS-

TEES OF THE STATE UNIVERSITY OF NEW

YORK, STATE UNIVERSITY OF NEW YORK AT

BUFFALO, SAMUEL B. GOULD, CLIFFORD C.

FURNAS, J. LAWRENCE MURRAY, ARTHUR

LEVITT, DEPARTMENT OF CIVIL SERVICE OF

THE STATE OF NEW YORK, CIVIL SERVICE

COMMISSION OF THE STATE OF NEW YORK,

MARY GOODE KRONE, and ALEXANDER 77 hi

ppellees.

On Dreect APPEAL FROM THE FINAL JUDGMENT OF A THREE

Juper Unirep States District Court Srrrixd In THE

Western District OH New LRC

APPELLANT’S STATEMENT AS TO JURISDICTION

Appellants appeal from the final judgment of the United

States District Court for the Western District of New York

entered on the 5th day of January, 1966, holding that Sec-

tion 105 of the New York State Civil Service Law, Sections

3021 and 3022 of the New York State Education Law, and

Section 244 of Article XVIII of the Rules of the Board of

Regents of the State of New York, and the Administrative

Regulations and Procedures used thereunder are constitu-

tional, and appellants submit this statement to show that

this Court has jurisdiction of the — and that substan-

tial questions are presented.

Opinions Below

The unanimous opinion of the United States District

Court for the Western District of New York was rendered

on January 5, 1966, is not yet officially reported and is set

out in the Appendix, infra, at pages 48-70. The opinions

of the Circuit Court of Appeals, reported in 345 F. 2d 236

(2d Cir., 1965) and the District Court, reported in 233 F.

Supp. 752 (W. D. N. V., 1964), are set out in the Appendix,

inf ra, at pages 53, 54.

Jurisdiction

This elass action was instituted on July 8, 1964 under

Section 1 of the Fourteenth Amendment to the Constitution

of the United States, as that Amendment exists independ-

ently of the First Amendment and as that Amendment in-

corporates the First and Fifth Amendments; further, un-

der Article 1, Section 10, Clause 1 and Article 6, Clause 2

of the Constitution of the United States, and further, under

Section 1343 of Title 28 and Section 1983 of Title 42 and

Sections 2281 and 2284 of Title 28 of the United States

Code, to pass on the constitutionality of Sections 3021 and

3022 of-the New York State Education Law, Section 105

of the New York Civil Service Law, Seetion 244, Article

XVIII of the Rules of the Board of Regents of the State

of New York, and the certificates required thereunder to

enjoin the appellees, each of whom is either an official body

or officer of: the State of New York, from eer .

rules and statutes complained of. 7

—

By decision filed on January 5, 1966, the Distriet Court

gave judgment for the appellees. and denied all relief re-

quested by-appellants. Notice of appeal was filed in the

District Court for the Western District of New Vork on

February 14, 1966. Jurisdiction of the Supreme Court of

the United States to review this decision by direct appeal

is conferred by Title 28, United States Code, Section 1253.

The following decisions sustain the jurisdiction of this

Court to review the judgment in this case on direct appeal:

Baggett v. Bullitt, 377 U. S. 360; Shelton v. Tucker, 364

U. S. 479; Florida Lime and Avocado .Growers, Inc. v.

Jacobsen, 362 U. S. 73. And see, Sweezy v. New Hump-

shire, 354 U. S. 234; Speiser v. Randall, 357 U. S. 513 and

Cramp v. Florida, 368 U. S. 278.

Statutes, Administrative Rules and Certificates Involved

The provisions of law involved in this case are: Section

105 of the New York State Civil Service Law, Sections 3021

and 3022 of the New York State Education Law, Section

244 of Article XVIII of the Rules of the Board of Regents

of the State of New York, Sections 160 and 161 of the New

York State Penal Law, and Feinberg Certificates, Forms

A and B. Because of their length, the texts of these provi-

sions and the certificates involved are set out in the Ap-

pendix to this statement, infra, pages 49, 50, 51, 87, 89.

Questions Presented

1. Whether the New York statutory complex, together

with the administrative regulations, rules and certificates,

unconstitutionally condition public employment of teachers

and ‘scholars at the university level in contzavention of

First Amendment freedoms. : } :

2. Whether the New York statutory Wide involved,

together with the administre tive rules, regulations, proce-

dures and certificates, unconstitutionally deprive appel-

lants of due process of la ww.

3. Whether the New York statutory complex involved,

together with the administrative rules, procedures and cer-

tificates, constitute a bill of attainder.

4. Whether the statutory complex involved, together

with the rules, procedures and regulations and certificates,

constitute an ex post facto enactment.

Statement

This suit challenges the constitutionality of Section 105

of the New York State Civil Service Law and the statutes

incorporated by reference therein, Sections 3021 and 3022

of the New York Education Law, Section 244 of Article

XVIII of the Rules of the Board of Regents of the State

of New York (hereinafter referred to as the Regents

Rules), and the certificates and procedures used under the

various statutes and rules.

On March 31, 1949, the governor of the State of New

York approved Chapter 360, Laws, 1949, being an act to

amend the Education Law in relation to eliminating from

the public schools superintendents, teachers and employees

who are members of subversive organizations’’, popularly

known as the Feinberg Law. The law added a new section

to the Education Law (Section 3022), the first subdivision

of which directed'the Board of Regents to adopt and en-

‘force rules and regulations for the elimination of persons

barred from employment in the publie school system on

any of the grounds set forth in former Section 12-a of the

Civil Service Law (now Section 105) and Section 3021 of

the Education Law. The second subdivision of the section

further provides that the Board of Regents shall, after in-

quiry, make a listing of organizations which it finds to be

subversive on the various grounds set out in former Sec-

tion 12-a (now 105) of the Civil Service Law and to, pro-

vide that membership in such organizations is prima facie

evidence of disqualification for employment or retention in

any office or position in the public schools of the state.

On July 15, 1949, Article XVIII, Section 244 of the Rules

of the Board of Regents, entitled ‘‘Subversive Activities“,

was adopted by the Board of Regents in pursuance to the

provisions of the Feinberg Law. These Rules provide, in

effect; that the school authorities shall put into effect cer-

tain procedures for the disqualification and removal of em-

ployees who violate Section 3021 of the Education Law or

former Section 12-a (now 105) of the Civil Service Law.

In essence, the Rules provide that prior to appointment of

any employee, nominating official shall inquire of his

former employers and others whether he is known to have

violated the statutory provisions involved and no persons

found to have violated the said statutory provisions shall

be eligible for employment. Each year the school authori-

ties shall prepare a report on each employee, stating wheth-

er there is any evidence, including membership, in an or-

ganization listed as subversive by the Board of Regents,

or any evidence indicating that the employee has violated

the statutes involved. If there is found to be such evidence,

the reporting official shall recommend the employee’s dis-

missal and within ninety days thereafter, the school au-

thorities must either prefer formal charges or reject, the

recommendation. In cases where the school authorities find

that in their judgment the evidence indicates a violation of

the statutory provisions, they shall immediately commence

tiomissal dings. ‘ N f

In 1953, by virtue of an extremely significant amendment

to Section 3022 of the Education Law (New York Laws,

1953, Ch. 681), the applicability of the entire complex of

laws was extended to include not only the public schools,

but institutions of higher learning, including hundreds of

educators in the State University system as well. In re-

trospect, it can be observed that this amendment set the

stage for the present suit. In September 1953, pursuant

to Section 3022, the Regents listed the Communist Party

of the State of New York and the Communist Party of the

United States as proscribed organizations, and on May 10,

1956, an Ad Hoc Committee of the Board of Trustees of

the State University of New York established the so-called

Feinberg Certificate (see Appendix, infra, pages 87, 88,

for original form, as well Appendix, infra, pages 88, 89,

for modified version). The Feinberg Certificate, in essence,

declares that the subscriber has read the Regents Rules,

that the Regents Rules and statutes cited therein constitute

the terms of his employment and that he is not now a

member of the Commumist Party and if he had ever been a

member, he has communicated that fact to the president of

the university. These certificates were apparently circu-

lated throughout the State University system and refusal

to subseribe to the certificate was made a ground for dis-

missal on grounds of insubordination. With respect to

the certificate, it should be emphasized that it is duality.

In effeet, it makes inquiry into past and present associa-

tions, but even more importantly, it requires an employee

or prospective employee to consent that certain offensive

‘statutes shall form a part of his contract of employment.

e mr re me gos

the argument below.

rer

In 1958, Section 12-a of the Civil Service Law was

amended and renumbered Section 105 (New York Laws,

1958, Ch. 790). The amendment (Civil Service Law, Sec-

tion 105 (3)), with its references to the Penal Law, raises

a question as to the effect of Sections 160 and 161 of the

New York Penal Law on all the provisions here involved.

Further, in 1958, a new section was added to Section 12-a

(e) (New York Laws, 1958, Ch. 503), naming the Com-

munist Party of the United States and the Communist

Party of New York as proscribed organizations, thus

bringing into focus the question as to whether the com-

plex here involved is a bill of attainder.

Prior to 1962, the University of Buffalo was a private

institution. However, on April 30, 1962, the University

of Buffalo was merged into the State University system

of the State of New York. Sometime thereafter, all mem-

bers of the academic staff of the State University of New

“York at Buffalo were required to sign the certificate known

as the Trustees Certificate (also popularly known as the

Feinberg Certificate) previously alluded to as a condition

of their continued employment. .

Plaintiffs Keyishian, Hochfield, Garver and Maud, all

under differing term appointments to the academic staff

at the State University of New York at Buffalo, declined

to sign the Trustees Certificate These plaintiffs were

subsequently notified that due to their failure to sign,

dismissal proceedings were being undertaken against them

on the grounds of insubordination. Plaintiffs were further

notified that their terms would not be renewed if they

did not sign the certificate as requested. The term of

_ Plaintiff Keyishian has ended and his appointment has

not been renewed. The terms of two of the other three

have not expired and they remain in their former positions.

They have been informed that dismissal proceedings: will

not be started against them until the validity of the stat-

utes, rules, and procedures here involved is determined.

Maud accepted a position after his term expired in Sep-

tember 1965, again subject to the determination of the

present suit, but has resigned from the university. Plain-

tiff Starbuck was appointed by the State University of

New York at Buffalo on September 1, 1963 under a one-

Fear contract as a specialist in acquisitions, and, in addi-

tion, in January 1964 was appointed as a lecturer in Eng-

lish. Subsequent to the former appointment, Mr. Star-

buck was required to swear to the following question:

Have you ever advised or taught or were you ever a

member of any society or group of ns which

taught or advocated the doctrine that the government

of the United States or of any political subdivisions

thereof should be overthrown or overturned by force,

violence, or any unlawful means?

Appellant Starbuck declined to answer this question and

as a result, was dismissed from his appointment on June

18, 1964.

On July 8, 1964, e ieee dina nia niet alone

action, in the United States District Court for the Western

District of New York seeking an injunction against the

enforeement of the statutes involved in this case and of

the regulations and procedures used to implement these

statutes. The District Court held that no substantial

federal question was raised, and accordingly refused to

refer the case to a three judge district court. 233 F. Supp.

752 (W. D. N. Y., 1964) (see Appendix, infra, page 53).

An appeal was taken to the United States Court of Ap-

peals for the Second Cirouit which Court reversed and

_ directed that the case be heard before a three judge court.

345 F. 2d 236 (2d Cir., 1965) (Appendix, infra, page 53).

The Court noted that Civil Service Law, Section 105(3)

had been added since Adler v. Board of Education, 342 U. S.

485, and observed that there was a significant similarity

between the laws in question here and those held uncon-

stitutional in Baggett v. Bullitt, 377 U. S. 360. It called

attention to the statement in Weiman v. Updegraff, 344

VU. S. 183, 192; that public employment may not be denied

on ‘‘patently arbitrary or un reasonable grounds. Judge

Marshall, in speaking of the Adler opinion, also stated that

it had held Section 3022 not unconstitutional as applied

to teachers in the public schools of New York; but had re-

fused to pass upon the constitutionality of Section 3021

and had not considered the application of 3022 to univer-

sity faculty.

On June 10, 1965, one week before the argument to the

three judge court, the Board of Trustees of the State

University of New York unanimously adopted certain

resolutions (Appendix, infra, page 63) which in effect

declared that it would no longer be Staté policy to re-

quire as a condition for employment, the execution of the

certificates of the type referred to as A and B (Appendix,

infra, pages 87-89). New procedures for appointments were

instituted. These new procedures provide essentially that

Section 105 of the New York Civil Service Law and Sec-

tions 3021 and 3022 of the New York Education Law

and the Rules of the Board of Regents still constitute

the terms and conditions for employment or retention in

employment of any teacher or scholar. Furthermore, the

: provide that anyone engaged prior to the ef-

fective date of the resolution shall not be deemed ineligible

for employment ‘‘solely’’ by reason of his failure to sign

the certificates involved. Thus, in addition to providing

that certain offensive statutes are still part of the pro-

feasors’ contract terms, the resolutions maintained the

constitutional issues raised by the certificates as well.

On June 16, 1965, a three judge district. court, sitting

in the Western District of New York, heard arguments on

the merits in this case and on January 5, 1966, the same

Court rendered a decision and order denying all the relief

requested by the appellants (Appendix, mfra, page 70).

Thereafter, and on February 14, 1966, the appellants filed

in the Federal District Court for the Western District —

of New York, a notice of appeal to the United States Sup-

reme Court, thus bringing this case to its present pos-

ture.

ARGUMENT

Substantial and Important Questions are presented.

A. The question as to whether the New York statutory

complex, together with the administrative regulations, rules

and certificates, unconstitutionally condition public employ-

ment of teachers and scholars at the university level in con-

travention of First Amendment freedoms.

This case presents the issue of freedom of speech and

association in one of its most significant and sensitive

aspects—the area of academic freedom. The appellants 4

involved here, as well as hundreds of educators in the

New Tork State University system have been required to

consent that certain offensive statutes shall form a part

of their employment and contract terms. A failure to

so consent is made grounds for removal from university

teaching positions throughout the state. Thus, the State

of New York has threatened ite educators with a punish-

ment uniquely suited to mute protest and bring about

doctrinal conformity. When one considers the years in-

vested in acquiring the knowledge and skills necessary to

teach at a university level with the fact of the rapid as-

similation of private universities into an ever growing

‘public university, loss of an opportunity to teach can be

seen to amount to a practical inability to follow one’s

profession. On a university level, a sense of freedom is

crucial if the frontiers of knowledge are to be enlarged.

The importance of unimpeded thought and the right of

exploration for teachers, unhampered by state harrass-

ment, far exceeds that of any other professional vocation.

This Court has fully recognized the importance of this

special interest.

In Sweezy v. New Hampshire, 354 U. S. 234, four mem-

bers of the Supreme Court held the view that:

„The essentiality of freedom in the community of

American universities is almost self-evident. No one

should underestimate the vital role in our democracy

that is played by those who guide and train our youth.

To impose any straitjacket upon intellectual leaders

in our colleges and universities would imperil the

future of our nation. No field of education is so

thoroughly comprehended by man that new discoveries

cannot yet be . — Particularly is that true in the

social sciences, where few if any principles are ac-

cepted as absolute. Scholarships cannot flourish in

an atmosphere of suspicion and distrust. Teachers

and students must always remain free to inquire, to

study and to evaluate, to gain new maturity and

; otherwise our civilization will stag-

and die. (Sweezy, supra, at p. 250).

The Sees case recognizes, therefore, the vital im-

portance of academic liberty. Its preservation is deemed

fundamental to our society.

While 1 in er ‘that “tha ‘Supreme Court is now com-

mitted to carefully safeguarding academic freedom, the

Court has, on the other hand, never suggested that a

state may not lay down reasonable terms of employment

for its teachers and professors. That which constitutes

— eee

reasonableness is such a case, however, has been reex-

amined and modified as the importance of academic free-

dom has received fifller judicial recognition its opposing

considerations necessarily have been forced to give away.

See generally, Murphy, Academic Freedom—An Emerging

Constitutional Right, 28 Law and Contemporary Problems

447 (1963).

In a series of cases, decided by a closely divided court,

the Supreme Court of the United States has upheld the

power of the state to inquire into an employee’s associa-

tions with allegedly subversive organizations as relevant

to the employee’s qualifications and fitness for public em-

ployment. It has for example, upheld the discharge of

municipal employees who refuse to take a statutory re-

quired disclaimer, oath, Garner v. Los Angeles, 341 U. S.

716; and of a subway conductor who refused to answer

questions relating to subversive associations under a stat-

ute which authorized discharge when reasonable grounds

existed for the belief that the employee was of doubtful

trust and reliability, Lerner v. Casey, 357 U. S. 468; and of

a teacher who refpsed to answer similar questions, on the

ground of “incompetency”, Beilan v. Board of Education,

357 U. S. 399; and of a social worker for his refusal to an-

“ gswer such questions, under a statute which made refusal

“insubordination”, Nelson v. Los Angeles, 362 U. S. 1.

These and other cases, however, indicate that there are

constitutional limitations on the state’s exercise of these

powers. For example, a broad inquiry into other kinds of

associations of a non-subversive character may not be

made. Sheldon v. Tucker, 364 U. S. 479. With respect to

disclaimer oaths, the state. may not indiscriminately re-

quire a disclaimer of innocent as well as knowing associa-

tion, even with subversive organizations as a condition of

Be D D BM MMM et a Sate Sai Ra Tk AOAC x el AS Ase ae moms

employment. ._Weiman v. Updegraff, 344 U. S. 183. Nor

may the disclaimer form be so vague that it is impossible to

determine its meaning, so that it acts as an inhibition to

free association of an innocent kind. Cramp v. Florida,

368 U. S. 278. Also the Court has indicated that in dis-

charging an employee whether because he is found to be a

subversive or because he refuses to sign a disclaimer or

answer questions, the state must accord the employee pro-

cedural due process, i. e., specification of charges and an

opportunity to be heard. Nostrand v. Little, 362 U. S. 474.

It follows, therefore, that while certain inquiries under

N specified conditions can be made, it does not follow that

academic freedom can be destroyed or inhibited on the

pretense of protecting the state from disloyalty.

With respect to appellant Starbuck, it is submitted that

the inquiry made of him raises serious constitutional ques-

tions. While it is clear that under some circumstances the

state can inquire into matters which relate to the teacher’s

fitness and suitability for public employment, Beilan v.

Board of Education, 357 U. S. 399, it is certain that a state,

in exercising this power, cannot exclude a person from

public employment by means of an unconstitutional sys-

tem, Wetman v. Updegraff, 344 U. S. 183.

Thus, it would be manifestly improper for the State to

deny unemployment under a guise of an alleged inquiry

into qualifications where such inquiry itself invades con-

stitutionally protected rights. It is clear that the State

does not have an absolute right of inquiry.

In every instance of inquiry, the State must contend

with restrictions placed upon it by the Fourteenth Amend-

ment of the Constitution of the United States which ap-

plies to the people of the states those freedoms of speech

and association embodied in the First Amendment. Thus,

in Shelton v. Tucker, 364 U. S. 479, an Arkanas statute

was held invalid which required every. teacher, as a condi-

tion of employment in a state supported school or college,

to file annually an affidavit listing, without limitation, every

organization to. which he had belonged regularly or con-

tributed within the preceding five years. The Court held

that the statutes went far beyond what might be justified

in the exercise of a state’s legitimate inquiry into the fit-.

‘ness and competency of its teachers. It is submitted that

the word “ever’’ and the completely retrospective query

made of appellant Starbuck goes beyond the se of legiti-

mate inquiry.

The question as to whether such remote associations as

are encompassed by the word “ever” can be inquired of

teachers, has not been foreclosed by Garner v. Los Angeles

Board, 341 U. S. 716. In that case, the disclaimer affidavit

containing the word “ever” regarding membership in the

Communist Party was upheld. The Garner case involved

municipal employees and the disclaimer affidavit was not

so sweeping as is the one here before the Court. The affi-

davit there dealt only with membership. Furthermore, the

oath requirement which was also upheld in that case was

retrospective at most only five years.

In Beilan v. Board of Education, 357 U. S. 399, the Court

upheld the dismissal of a teacher by a Pennsylvania School

Board. The teacher had refused to confirm or refute. in-

formation as to his activities eight years prior in certain

_allegedly subversive organizations. oe ge the Court

8 pointed out at page 405:

“Petitioner’s refusal to answer was not based on the

gene of his 1944 activities.”

“Weis clear that the Court felt that the substantial issue

would have been raised if remoteness had been the basis of

the teacher’s refusal to answer.

An aspect of the Garner case which bears on the eonsti-

tutional question before us is one that is often overlooked.

The State will say that the inquiry here is merely into

qualifications and that no determination of -eligibility can

be made prior to the answering of the question involved.

The implication is that appellant; Starbuck, would not nec-

essarily be discharged if he had answered the question in

the affirmative. In Garner, the Court stated at page 720:

“Not before us is a question whether the city may

determine an employee’s disclosure of such political

affiliation justifies his discharge.’ na

In the present case, this Court is not 3 with

the lack of information noted by the Supreme. Court in

Garner. It is plain what the results of an affirmative an-

swer to the disclaimer question herein would be. In New

York, affirmative disclosure of the information being elic-

‘ited would result in ‘‘ prima facie’’ evidence of disqualifica-

tion for appointment to or retention in any pffice or posi-

tion in the service to the state or any city or cig! division

thereof”. New York Civil Service Law, Sec 105, New

York Education Law, Section 3022(2).

The reason for this is that past membership in a sub-

versive organization is “presumptive evidence that mem-

bership has continued, in the ‘absence of a showing that

such membership has been terminated in good faith.” Rules

of the Board of Regents, Article XVIII, Section 244(2).

It is therefore clear that one who answers the question

affirmatively would have the heavy burden of bringing in

substantial evidence in the very first instance. And it

would not matter at what age or under what circumstances

the improper activity had taken place. These are cireum-

_ stances not contemplated i in the Garner case. Every in-

quiry into past associations is an encroachment " upon

16 ®

rights granted by the First Amendment. Such admitted

encroachments have been allowed by the Supreme Court on

the theory that the interests of the State must be balanced

by those of the individual. The rationale of the cases

which have allowed inquiry into past association of a

public employee has been that such information was rea-

sonably necessary to determine, an appellant’s fitness.

Can it be said that an inquiry right to a teacher’s birth is

necessary in order to determine his fitness? This is the

latitude which the word ‘‘ever’’ allows. Furthermore, a

heavy burden is placed on a teacher as previously men-

tioned, if at some time in the distant past he became a

member of a group whose present day activities are pro-

‘seribed. To place such a burden on a person while ad-

mittedly infringing on his constitutionally rights of asso-

ciation and speech, cannot be accepted on the basis of an

allegedly honest search into qualifications. The more

remote the associations and speech looked, the less per-

suasive the qualifications argument becomes. Therefore,

the use of the word “‘ever’’ raises the substantial consti-

tutional question as to the point at which the First Amend-

ment operates as a limitation upon state authority to in-

quire of state employees, particularly faculty members,

and to consti employment as a lever to compel an an-

swer.

However, there is more at stake in this case merely than

questions of inquiry and the scope of inquiry which can be

carried out by a public authority. The statutes and regu-

lations involved in, this case are made conditions for em-

ployment. An examination of these statutes show that

they are not primarily designed to elicit information.

They are exclusionary. They are designed to exclude from

the public service certain individuals who fall within their

Aer

proscriptions. It is with n 3

that we deal here. \

The statutory provisions and their “inhibitory effect on

academic , raise serious questions which should

be decided’ by this Court. At the outset, however, we

should direct our attention to the case of Adler v. Board of

Education, 342 U. S. 485, for the reason that the Court

below relied heavily upon it. Adler does not dispose of

the issues in this case. The complaint in Adler was di-

rected only at Section 3022 of the Education Law and

Section 12-a of the Civil Service Law. Although the ap-

pellants in Adler argued before the Supreme Court that

Section 3021 was unconstitutionally vague, the Court ab-

stained from ruling upon the question since the issue had

not been raised below. See Adler, supra, at page 496. In

fact, the attack upon the statute in Adler upon the grounds

of vaguenes was limited to the single word subversive

as it appears in Section 3022 of the Education Law (see

Adler, supra, at page 496). The present complaint is more

broadly framed; appellants challenge the statutory scheme

as a whole, charging that its complexities are so profound

and pervasive as to render the entire network uncònstitu-

tionally vague. It should be further observed that the

present complaint attacks the vagueness of the proscrip-

tion set out in Section 105 (1) and (2) as well as the

remainder of Section 105 of the Civil Service Law. Em-

phasis is placed upon this fact for the reason that al-

though the Supreme Court in Adler stated that they found

no constitutional deficiency in Section 12-a of the Civil

Service Law, an examination of the briefs in the Supreme

Court in that case discloses that the unconstitutionality of

.that section was not pressed; indeed, it was not even

argued as both sides conceded the constitutionality of

Section 12-a (appellants’ brief, pp. 5-6, 9; — brief,

P. 16). It is not surprising, therefore, that 12-a was so

casually passed over by the Supreme Court without analy-

sis or discussion. Adler is further not dispositive of the

issues in this case for the reason that subdivision (3) of

Section 105 of the Civil Service Law was added by the New

York Legislature in 1958 (N. Y. Laws, 1958, Ch. 790).

This provision, not having existed at the time Adler was

decided, of course, has not been foreclosed from considera-

tion by that decision. Moreover, this subdivision with its

references to the Penal Law raises the questions of the

effect of Sections 160 and 161 of the New Ydrk Penal Law

upon the provisions here involved. Additionally, in 1958,

a new paragraph was added to Section 12-a(c) (N. I.

Laws, 1958, Ch. 503). This paragraph, naming the Com-

munist Party of the United States and the Communist

Party of New York as proscribed organizations, was

added long after the Adler decision.

The Trustees Certificate, having been established in

1956, also was not in existence at the time Adler was de-

cided and thus the very important constitutional questions

which it raises are not foreclosed by that decision, also the

issue of the constitutionality of the Regents Rules are not

foreclosed by Adler, since Adler did not consider the

validity or constitutionality of the Regents Rules. ss

By a 1953 amendment to Section 3022 of the Education

Law (N. Y. Laws, 1953, Ch. 681), the applicability of the

section (and consequently of 105 of the Civil Service Law

which is incorporated by reference therein) extended

to inelnde, not only public schools, but institutions of

higher learning as well. This provision was not before

the Court in Adler. Considering that the statutes which

free inquiry, the impact of this amendment cannot be

lightly brushed aside. Our society relies heavily upon its

institutions of higher learning as a souree of new ideas.

The challenge to orthodox political notions, however dis-

concerting it may be, or however repugnant it may be to

the statutes presently in force in New York, is nevertheless

valuable to our political self-awareness, By so depriving

our professors and their students of,free-ingury, we stimu-

late the kind of smugness presently seen to impose perhaps

a greater threat to our institutions than any which has

preceded it. See “generally, Morris, Baggett v. Bullitt;

Scienter and ‘‘Guiltless Knowing Behavior’’, 1 Law in

Trans. Q. 185, 189 (1964). The public school and the in-

stitution of higher learning are designed to function at

different levels and to reduce the latter to the level of the

former is to destroy entirely its raison d etre.

Another new and pervasive influence upon the statutes

complained of arises from the reference in Section 105(3)

of the Civil Service Law to the New York Criminal

Anarchy Statute (N. Y. Penal Law, 5 160, 161). It will

be seen that in attempting to assign some meaning to the

words ‘‘seditious utterance or act’’, the New York Legis-

lature has further circumscribed the permissible conduct

of those affected by the statutes and rules complained of.

This amendment was added in 1958, long after Adler was

handed down (N. Y. Laws, 1958, Ch. 790), and since it

affects not only the section in which it appears, but Section

3022 of the Education Law and the Regents Rules as well,

these provisions must new be carefully analyzed as to

their bearing in the present suit.

With respect to the penal provisions involved in this

dnss, it is respectfully submitted that the Court below erred

in its determination that the looser language of Section

161 of the Penal Law was not before it.

-.: Subdivision. (3) of 105 of the New York Civil Service

Law is captioned Removal for Treasonable and Seditious

Acts or Utterances’’ and provides:

A. person in the civil service W of any

civil division thereof shall be removed theref rom for

the utterance of any treasonable or seditious word or

words or the doing of any treasonable or seditious act

or acts while holding such position. For the purpose

of this subdivision, a treasonable word or act shall

mean ‘treason’ as defined in the Penal Law, a sedi-

| . ‘criminal anarchy” as

defined in the Penal Law.“

Section 160 of the New York Penal Law provides:

„Section 160. Criminal Anarchy Defined. Criminal

anarchy is the doctrine that organized government

should be overthrown by force or violence, or by as-

sassination of the — head or of any of the execu-

tive officials of government, or by any unlawful means.

The advocacy of such doctrine either by wor or

mouth or writing is a felony.’’ (Emphasis supplied.)

Section 161 of the New York Penal Law is entitled

“Advocacy of Criminal Anarchy’’. The section then re-

lates what acts, associations and beliefs, constitute the ad-

vocacy of criminal anarchy. It is perfectly clear that both

sections are intimately bound together. The advocacy of

such doctrine (N. Y. Penal Law, § 160) is obviously de-

fined in Section 161, and as such, constitutes a part of the

complex involved here and is incorporated into Civil Ser-

viee Law Section 105 (3). There is no need for this Court

to go to a dictionary for the definition of ‘‘advocacy’’. The

State Legislature of New York has set out the definitions

in $161. The serious constitutional questions raised by

these definitions cannot be avoided merely by leaving out

the operative sentence of Section 160 (see opinion of the

‘three jadge district court, Appendix, infra, page 48).

Furthermore, and most importantly, at no stage of the

proceedings involved in this case from its inception through

21 oa

torney General of the State of New York or the counsel for

the State University of New York denied that Section 161 is

included in the complex before this Court. Neither have

they denied that a violation of that provision would result

in dismissal proceedings under the complex as indeed they

could not since the New York Court of Appeals has indi-

cated that two ions are to be construed together.

„James Larkin, Benjamin Gitlow, C. E. Ruttenberg,

and Isaac E. Ferguson, were indicted, tried and con-

victed for the crime of criminal anarchy as defined by

Sections 160 and 161 of the Penal Law * * People

v. Gitlow, 234 N. Y. 132, at 135. (Emphasis supplied.)

Therefore, the appellants maintain that Section 161 of the

Penal Law is before this Court.

Thus, in essence, it is a vastly different statutory scheme

which is here attacked than that which was before the Court

in Adler. Furthermore, the parties attacking these statutes

have interests which differ considerably from those parties

in the original Adler proceeding. As to Adler’s substance,

it can be observed that the Court adhered to the concept of

public employment, academic or otherwise, as a privilege.

See e.g., Bailey v. Richardson, 182 F. 2d 46 [D. C. Cir. 19501,

aff d 341 U. S. 918. It was said in Adler that teachers had

8 * no right to work for the state in the school system on

their own terms. If they [did] not choose to work on such

terms, they [were] at liberty to retain their beliefs and go

elsewhere“, Adler, supra, at p. 492. The Supreme Court,

subsequent to Adler, has clearly indicated that state em-

ployment does not fall into the ‘privileged classification’’.

| Weiman v. Updegraff, 344 U. S. 183 at 191-192. See also

Slochower v. Board of Education, 350 U. S. 551 at p. 555;

Cramp v. Florida, 368 U. S. 278 at p. 288. Further, Adler

aaa ae

was decided before this Court fully recognized the consti-

tutional protection of the right of private association.

NAACP ͤ v. Alabama, 357 U. 8. 449. The Adler decision also

failed to take account of:the more lately recognized import-

ance of academic freedom, Sweezy, supra. Furthermore,

Adler relied in part on Garner v. Los Angeles Board, 341

U. S. 716 for a point which was expressly not considered

in Garner and about which the Court stated at page 720

‘‘not before us is the question whether the city may deter-

mine that an employee’s disclosure of such political affilia-

tion (in the Communist Party U. S. A.) justifies his dis-

charge. In New York, affirmative disclosure of the infor-

mation being elicited would result in ‘‘prima facie evidence

of disqualification for appointment to or retention in any

offide or positions in the service of the Stafe or any city or

civil division theréof.”’ Also, the Court’s reliance on

Garner was misplaced, for the reason that Garner did not

consider the interests of a state nor those of a professor nor

those of society in academic freedom on a university cam-

pus. r does not speak of this set of relationships.

the interests of both the state and an employee in the

ipal civil service differ materially and fundamentally

from a state’s interests in its professorial faculty and a

professor’s interest in academic employment cannot be

denied. Whatever interest the state may have in minimally

restricting the speech and association of a municipal ciyil

servant as a condition of his employment, that interest is

obviously not of the same order as is its interest with re-

spect td the speech and association of university faculty

members. The Oourt's opinion below indicated that this

Court's disposition in Gerende v. Board of Supervisors, 341

U.S. 56 has a strong bearing on the issues involved in this

case (Appendix, infra, page 67). The Gerende case

not dispose of any issues in this case. In Gerende

Court affirmed the judgment of the Maryland Court of Ap-

peals on the grounds that a candidate need only make oath

that he is not a person who is engaged ‘in one way or an-

other in the attempt to overthrow the government by force

or violence’ * * *’’, Gerende, supra, at page 67. This

Court did not have before it Section 15 of Maryland’s Ober

- Act, which broadly defines a subversive person“, as the

Maryland Court had held that the section did not apply to

Gerende, Shub v. Simpson, 76 A. 2d 332 at 341.

Neither is this case controlled by Konigsberg v. State

Bar, 353 U. S. 252 and In re Anastoplo, 366 U. S. 82, for the

reason that has been stated above that there is a difference

between a state offering a ‘‘privilege’’ and the state

legislating conditions of state employment. Neither is this

case controlled by Beilan v. Board of Education, 357 U. S.

299, for the reason that in the Beilan case the individual in-

volved there could have given the required information and

still retained his employment. It will be noted that in the

State of New York that result is not the case. The system

is exclusionary and not designed to secure information only.

For similar reasons, Lerner v. Casey, 357 U. S. 468 and

Nelson v. Los Angeles, 362 U. S. 1, do not control. For the

reasons set forth above, a mere recitation of citations. in-

volving the employee dismissal cases will not answer the

issues raised by the case at bar. 7

To attempt to foreclose the issues in this case by refer-

ring to Gitlow v. New York, 268 U. S. 652 is to overlook the

present status of Gitlow. Justice Frankfurter, while ac-

knowledging that Gitlow had never been explicitly over-

ruled, stated, nevertheless, that * it would be disingenu-

ous to deny that the dissent in Gitlow has been treated with

the respect usually accorded to a decision.“ Dennis v.

United States, 341 U. S. 494, 541. Since Gitlow, this Court

has decided such cases as Winters v. New York, 333 U. S.

507, Laneetta v. New Jersey, 306 U. S. 451, Cramp v.

Florida, 368 U. S. 278 and Baggett v. Bullitt, 377 U. S. 360,

which cast further doubt upon Gitlow’s validity.

Thus the many issues raised by the case are issues not

presented in the original Adler proceeding. This Court now

has the opportunity to critically analyze the statutory pro-

visions involved here and which have been made the con-

tract terms of the appellants, from the point of view of their

reasonableness, especially when viewed with regard to First

Amendment freedoms and the interests of those whom

society should guard most strongly—its academic personnel.

An examination of the provisions involved in this case

will show that within the literally hundreds of prosoriptions

contained therein is conduct and language which the

Supreme Court has often recognized in the past as consti-

tutionally protected. Where one is prohibited from the

utterance of any word of ‘‘criminal anarchy’’, he is pro-

hibited from discussing in the most abstract manner, those

political doctrines which are today opposed to ours; indeed,

the Appellate Division of the New York Supreme Court

has been of the opinion that the writings of Karl Marx

fall within the condemnation of the Penal Law sections.

See In re Lithuanian Workers Literature Soc., 196 App.

Div. 262, 187 N. Y. 612 (2d Dept., 1921). Thesections would

also prohibit the carrying on a public street by a university

professor of a copy of the Communist Manifesto: ‘‘* * * pub-

licly any book * * * containing * * * the doctrine that organ-

ized government should be overthrown mt force * * ,

Penal Law, Section 161(2).

Also included within the prohibitions of the above sec-

tions is a college faculty member who edits any

book * * containing * * C

72 25

of the Fate States * should be overthrown by force

* * * and who * * * embraces the * * propriety of adopting

the doctrine contained therein (Civil 7 Law,

105 (1) (b)). 5

Thus, New York bars from public per Ag nes 5 tale

those who do certain innocent acts, but those who belie ove,

in forbidden ideas and concepts as well. It is an extremely

serious matter when the state attempts to legislate in the

areas of beliefs and this Court has been most careful when

dealing in areas involving state compulsion i in such eee

See Torasco v. Watkins, 367 U. S. 448.

In addition to forbidding innocent activity and belief,

the statutes here under consideration prohibit public em-

ployment to one who ‘‘* voluntarily assembles with any

society, group or assembly of persons formed to teach or

advocate such doctrine’, Penal Law, Section 161 (4). Thus

phrased, the proviso is clearly repugnant to the United

States Constitution, DeJonge v. Oregon, 299 U. S. 353.

It will be observed from a close analysi is of the statutes

in question that aside from issues involving innocent con-

duct and speech which are clearly protected by. the United

State Constitution, that the State of New Vork has for-

bidden other conduct and speech upon a lesser standard

than do the Smith Act cases. Thus, for’ example, N. . a

Penal Law, Section 161 (1) makes one guilty of a crime

who by word of mouth or writing, advocates, advises or

teaches the duty, necessity or propriety of overthrowing

or overturning organized government by force or violence

„„. This must be compared with the admonition of

the Supreme Court that ‘‘We held in Y ates, and we reiterate

now, that the * * * teaching of the moral propriety or even

moral necessity for resort to force or ‘violence, is not tlie

‘same as preparing a group for violent action. and sealing

—

ee REE e ee S ene TR RE OER Ca

it to such action. . Noto v..United States, 367 U. S. 291

Most importantly, counsel submit that the complex is

fatally defective in material parts because its commands

are stated in vague and uncertain language which makes

it difficult or impossible for those subject to its terms to

ascertain its meaning and which permits it to be applied

in situations not properly within the scope of state power.

For example, Section 3021 of the New York Education Law

requires the removal of academic personnel ‘‘* * * for the

utterance of any treasonable or seditious word * * *’’.

Phrased thus broadly and loosely, it is on its face repugnant

to the Federal Constitution. We should ask ourselves is

„down“ a seditious word? Is down with the United

States Government“ a seditious phrase? Justice Frank-

furter, by way of dicta, has indicatéd clearly the problem

which Section 3021 poses. Adler v. Board of Education,

supra, at 506 (dissenting opinion). Subdivision (3) of

Section 105 of the New Yorks Civil Service Law contains

language similar to Section 3021 and, therefore, is similarly

questionable. Unlike Section 3021, this subdivision states

that ‘‘seditious’’ shall mean ‘‘criminal anarchy’’, as defined

in the Penal Law. These definitions, however, do not

ameliorate the vagueness of the words purportedly defined.

On the contrary, Section 105 (3), by equating ‘‘sedition”’

with ‘‘criminal anarchy' only further aggravates the lan-

guage already unconstitutionally vague.

The Court should also note that a college professor has

uttered a seditious word and is thus to be barred from

_public employment where he ‘‘* * * justifies by word of

mouth * * the * * unlawful * * * assaulting of any

executive * * * of * any civilized nation having an

organized government or any other crime * with

intent to *.*.* spread the propriety of the doctrine of crimi-

nal anarchy * „ N. T. Penal: Law, Section 161(3). We

are not told what is meant by a ‘‘civilized nation’’ or at

what stage in its development a government becomes

organized Furthermore, „justiſies embraces a multi-

tude of acts so broad as to be limited only by the hearer’s

prejudices. The range of behavior proscribed by ‘‘* * *jus-

tifies * * any crime * * is so o broad as to define compre-

hension.

Still another nate hs Fs feature of the complex is

the use of the phrase ‘‘helps to organize’’, Civil Service

Law, Section 105 (1) (e); N. V. Penal Law, Section 161(4).

To be required to ascertain whether one ‘‘helps to organize

is to surrender completely to hopeless confusion. It catches

the assistant to the assistant. ? :

The questions which Justice White found to be left open

by the Washington statute in Baggett v. Bullitt, 377 U. S.

360, at 368-73, are similarly left open by the statutes pres-

ently complained of. In Cramp v. Florida, 368 U. S. 278,

the Supreme Court found unconstitutionally vague the

requirement that a teacher not lend * * aid, support,

advice, counsel or influence to the Communist Party’’. Far

more vague is the requirement presently complained of

that no academic personnel engage in ‘‘treasonable or sedi-

tious aets’’. Both requirements would proseribe consti-

tutionally protected conduct, yet the latter leaves far more

room for argument as to the 8 and quality of the

conduct which it proseribes.

In a series of cases, the Supreme Court ee. held that

a state has no power, under the First and Fourteenth

Amendments, to forbid or command an act which is defined

by terms so fluid and vague as not to be susceptible to

objective measurement thereby forcing men of common in-

telligence to guess at their meaning and to differ at their

application. Winters v. New York, 333 U. S. 507, Lanzetta

v. New Jersey, 306 U. S. 451, and the cases cited therein.

The resulting effect of the broad and vague language

contained in the complex under consideration, is that a

person engaging in teaching activities in the State of

New York will find it impossible to know when some action

of his, knowingly or wilfully undertaken, will be construed

to be an act falling within the prohibition of the complex.

Similarly, he would not know whether a speech or pamphlet

of his might also be held to fall within the prohibitions

involved in this case. Such uncertainties plainly fail to

meet the requirements of due process that legislation must

be framed in sufficiently clear terms to permit those subject

to it to know where the standards imposed will draw the

line between the allowable and the forbidden. The Supreme

Court, in Smith v. California, 361 U. S. 147, at page 151,

declared :

„This Court has intimated that stricter standards of

permissible statutory Gally inhibi may be applied to a

statute having a poten inhibiting effect on 3

a man may be less required to act at his pe here,

because the free dissemination of ideas may be the

loser.“ See also NAACP v. Button, 371 U. S. 415 at

p. 432-433.

No one can deny that the sweeping breadth and scope of

the prohibited conduct with its threats of possible impris-

onment as well as loss of employment constitute the type

of statutory scheme which will inhibit and deter the First

Amendment freedoms of those to whom our society has need

to give the freest rein of intellectual inquiry—university

professors and scholars.

A striking feature of this complex is the fact that mem-

bership in groups which do not advocate forceful over-

throw of the government is presumptive evidence of dis-

qualification for appointment to or retention in the public

service of the State of New York. This is the case because

the Rules of the Board of Regents provide that :

(7 of organi-

zations which the Board finds to be subversive in that

they * * * embrace the doctrine that the government

of the United States * * * shall be overthrown or over-

turned by force * * * or that they * * embrace the

* riety of adopting any such doctrine * * *’’.

Article III Section 244 (2).

This must be compared to Civil Service Law, Section

105(c) which proscribes membership in a group ‘‘* * *

which * * * advocates that the government of the United

States * * shall be overthrown by force or violence * * *’’.

It is apparent that the State is empowered by virtue of

the Rules of the Board of Regents to proscribe membership

in groups which merely believe in the proposition that the

government of the United States shall be overturned by

force. The indefiniteness of such a proscription is readily

apparent.

In view of what has been said with respect to the statu-

‘tory complex here involved as well as its possible inhibitory

effects upon academic personnel situated throughout the

State of New York, the appellants submit that the issues

raised are substantial and merit full plenary review and

‘argument before this Court.

In considering the foregoing arguments, we ask this

Court to consider that the threat of criminal prosecution

permeates and pervades the statutory scheme. Many of

‘the same acts which will result in a loss of ‘public employ-

ment are defined as criminal. While it might be argued

‘that the danger of prosecution is limited, the

‘Supreme Court has stated that First Amendment freedoms

— —

are delicate and vulnerable as well as supremely precious

in our society and that the threat of sanctions may deter

their exercise almost as potently as the actual application

of them. C. F. Smith v. California, 361 U. S. 147, at 151-154;

Speiser v. Randall, 357 U. S. 513, 526. Furthermore, it

would be blinking reality not to acknowledge that there

are some among us always ready to fix a Communist label

upon those whose ideas they violently oppose. Experience

teaches that prosecutors too are human. Cramp v. Florida,

368 U. S. 278 at 286-287. In times such as these, with the

rapid growth of extreme right wing organizations, it is not

unrealistic to consider the threat of prosecution a serious

one. In addition, university professors and scholars are

extremely vulnerable when operating under such broad and

indefinite prohibitions. Their function is to examine, to

question, to dispute, to explore unorthodox and unpopular

notions. Thus, they are most apt to cause the passions of

the community to become aroused. In circumstances such

as those, they can, under the penal provisions of this com-

plex, be placed at the mercy of unsympathetic judges and

juries. There may not be much hesitancy in reaching a

verdict that someone who is unpopular is also a subversive

and, therefore, a criminal. Past history shows that it is

not only the ignorant who would drag those who pursue

social reform into the Communist camp, but also judges,

prosecutors, legislators, and candidates for all those offices.

By abridging freedom of thought, speech, association and

academic freedom through the imposition of this umbrella

of prior restraints upon appellants imposed by language

which is vague, indefinite and ambiguous, university schol-

ars must, at their peril, guess as to the meanings of the

standard imposed and are forced to speculate as to the

nature of the penal and other laws which might be applied

to them. They are thereby denied reasonable advance

notice of the circumscribed areas involved and thus are

inhibited and restricted in the area of constitutionally pro-

tected freedoms. This issue, touching as it does, upon

hundreds of university educators and scholars, is thus one

of extreme significance and importance and merits the full

attention of this Court.

B. The question whether the complex involved here un-

constitutionally deprives appellants of due process of law.

1. The lack of a hearing.

In addition to the serious constitutional problems raised

by the State requirement that all teachers sign the Feinberg

Certificate and the questions raised by the eompletely

retrospective questions asked of appellant Starbuck, coupled

with the dismissal for public employment provisions, see

Speiser v. Randall, 357 U. S. 513, the complex does. not

afford academic personnel serving on contract and without

tenure a formal hearing in respect to non-renewal of their

terms.

‘In Article XVIII, Section 244, of the Rules of the Board

of Regents, subdivision (2)(e), the Board of Regents has

declared that:

In proceedings against persons serving under con-

tract and not under the provisions of the tenure law,

the school authority shall conduct such hearings on

charges as they deem the exigencies warrant, before

taking final action on dismissal.’’

Thus, the appellants presently still employed at the State

University will have no right to a hearing in the event

they are dismissed. This is so despite the fact of Civil

Service Law, Section 105(2), since under the new proce-

dures, ‘‘refusal of a candidate to answer any question

relevant to such inquiry * * * shall be sufficient ground

to refuse to make or en een a

a: aaa

tions, Section 3, Appendix, infra, page 90). Under this

procedure, the appointment would be refused on grounds

that the candidate had blocked an inquiry into his qualifi-

cations rather than as disqualification under the complex.

Thus, no hearing is afforded.

Appellant Starbuck was appointed pursuant to the New

York Civil Service Law in a temporary capacity on Sep-

tember 1, 1963 as a specialist in acquisitions but was dis-

missed without a hearing on June 18, 1964 for failing to

answer a question relative to past political beliefs and ac- {

tions previously set forth (supra, this Statement, page 9).

With respect to appellant Starbuck, the State has definite-

ly taken the position that temporary state employees who

are discharged for failure to answer the question involved

are not entitled to a hearing. Thus, the right of all ap-

pellants here to a hearing is clearly an issue.

If there were no possible explanation or defense for

failure to give the information requested, then it might be

said that a hearing would be unnecessary because such re-

fusal to give the requested information would inevitably

result in a conclusion of unfitness. However, there are

many reasons why a professor or state employee might not

want to answer which in ne way would reflect on his loyal-

ty or unfitness for the job. Thus, an opportunity to ex-

plain could lift the cloud of suspicion which a refusal to

answer would generate. The Supreme Court has recog-

nized the . * of a hearing in situations of this

type.

e Board of Education, 350 U. S. 551, the

issue revolved around, the New York City Charter which ,

provided for the dismissal from employment of any em-

ployee who utilized: his privilege against self-incrimina-

tion to avoid. a question relating to his official

conduct. The Charter provided in effect, that the dismissal

was to be automatic without right to notice charges or

hearing. Slochower, an assistant professor at Brooklyn

College, a public institution, exercised his right against

.self-incrimination with respect to former membership in

the Communist Party before a committee of the United

States Senate. He was summarily discharged. The United

States Supreme Court held that the discharge violated

both substantive and procedural due process. In speak-

ing of the procedural aspect, the Court stated, at p. 559:

„We hold that summary dismissal of appellant violates

due process of law.. |

The Supreme Court has consistently shown its concern

with lack of procedural safeguards subsequent te Slo-

chower. This can be seen in the instances where the Court

has felt obligated to comment upon the question even

where the issue had not been raised by the parties.

In Nelson v. Los Angles County, 362 U. S. 1, Globe, a

municipal employee, was discharged from public employ-

ment for refusing to answer certain questions concerning

subversion before a/sub-committee of the House Un-Ameri-

can Activities Committee. A statute of the State of Cali-

fornia made it the duty of any public employee to give such

testimony. Since he was a temporary employee, Globe

was denied a hearing on his discharge on the ground that

he was not entitled to a hearing under the civil service

rules of the county. Commenting upon the procedural

aspects of the case, the Court stated at page 8:

‘‘But petitioner here raises no such point, and clearly

asserts that ‘‘whether or not petitioner Globe was ac-

999

corded a hearing is not the issue here’.

In Footnote 5, the Court states:

‘‘Nor does petitioner make any attack on the failure

of California’s statute to afford temporary employees

such as he an opportunity to explain his failure to

meneame — —— ae

answer questions. it ‘will ‘be ‘noted that ‘permanent em-

ployees are granted such a privilege. “

1 Nostrand v. Little, 362 U. S. 474, two professors at

the University of Washington brought an action challenging

the validity of the state’s statute which required all public

employees to subseribe to an oath that they were not sub-

versive persons or members of the Communist Party or

any subversive organization within the meaning of the

statute. Refusal to take the oath was made grounds for

immediate termination of employment. The Supreme

Court of the State of Washington upheld the constitution-

ality of the statute. However, the United States Supreme

Court remanded the case to the Washington Court for a

determination as to whether state employees who refused

to sign the oath would be entitled to a hearing. The Court

used the following language at page 475:

„One of the claims is that no hearing is afforded at

which the employee can explain or defend his refusal

to take the oath. The Supreme Court of Washington

did not pass on this point. The Attorney General sug-

gests in his brief that prior to any decision thereon

here, ‘the Supreme Court of Washington should be

first given the opportunity to consider and pass upon’

_ fy

On remand, it was stated in the Washington Supreme

Court:

‘‘Tmplicit in the remand is the implication that, if we

hold that such a hearing is not afforded by the Act,

it is violative of due process.“ Nostrand v. Little, 361

P. 2d 551, 567. *

The Court found a hearing would be required.

An appeal was again taken to the United States Supreme

Court which, in a per curiam decision, dismissing the case

for want of a substantial federal eer an Nostrand v.

Little, 368 U. S. 436. | /

Justice Douglas, dissenting, stated at page 436:

The disposition that the Court makes of the case re-

solves one of the questions presented by the appeal,

vie., that appellants are entitled to a hearing before

they can be discharged for refusing to take the oath.’’

Justice Douglas would have considered the substantive

aspects of the case as well. ieee

It is clear from the cases that a teacher has the right

a hearing before discharge from employment where his

discharge has been predicated upon his refusal to answer

questions concerning alleged subversive activities. The

rationale of Such a right is no doubt based upon the fact

of a recognition by the Supreme Court of the public re-

action to a dismissal from employment were questions of

subversion are raised.

As was stated in Baggett v. Bullitt, 219 F. Supp. 439, at

452: g

‘‘ Although discharge of a state employee for failing

to fulfill a condition of employment by signing the

loyalty oath carries no necessary inference of dis-

loyalty to the employee, it would be ostrich-like to

ignore the practical realities of a public opinion which

tends to attach a stigma of disloyalty to such a dis-

charge, a stigma which may have a profound effect on

the discharged employee’s future employment and

social and economic status. The severe impact of such

a discharge upon an employee whose refusal may be

motivated by considerations unrelated to disloyalty,

invokes the protection of due process with compelling

force.“

With such a rationale, it is unlikely that the Supreme

Court would distinguish between tenured and non- tenured

teachers. Baggett v. Bullitt, 377 U. S. 360, involved non-

teachers among others who were summarily discharged

for failing to subscribe answers to a loyalty oath and an

oath of allegiance. 15 is latied

—

The oaths were declared unconstitutional on vagueness

grounds, however, it is interesting that Justices Clark and

Harland, in dissenting, stated at page 384:

_. “Likewise, in view of the decision of Washington’s

highest court that tenured employees would be entitled

to a hearing * * * the due process claim is without

foundation. This conclusion would also apply to

those employees without tenure, since they would be

2 to a hearing under Washington's Civil Service

The State of New Vork has taken the position that Star-

buck, as a temporary state employee, is not entitled to a

hearing. Under the procedures involved, the other ap-

pellants are not entitled to a hearing also.

Thus the questions presented by this aspect of the case

are substantial in that they directly raise fundamental

constitutional issues with respect to the power of a state to

discharge non-tenured and temporary state employees

without a hearing where questions relating to subversion

are involved.

It is submitted that the Court below fails to meet this

issue squarely. The Court evidently upheld the discharges

without a hearing on the grounds that a hearing is pro-

vided where an affirmative answer to the question is given.

That, of course, was not the issue. The Supreme Court

has been concerned with the issue of a hearing where there

has been a refusal to answer.

From the above analysis, it can be seen that termination

of public employment is automatic, ‘‘it matters not wheth-

er the [failure or refusal] resulted from mistake, in-

advertence, or legal advice conscientiously given, whether

wisely or unwisely’’, Slochower v. Board of Education,

supra, 350 U. S. at 558, or happens to rest upon honest

belief that the United States Constitution prohibits such

inquiry as is made into a person's thoughts and speech.

C. F. Konigsberg v. State Bar, supra, 353 U. S. 252. There

is here no concern for the employee’s reasons, whether

they are with or without justification... Even if a public

employee holds the steadfast conviction’ that the federal

constitution shields him from being compelled to make the

disclosures required, the procedures here provided only

two alternatives: either to answer or to suffer summary

discharge from state employment. }

With respect to the employee dismissal cases cited: 57

the Court below, it should be pointed out that this case is

distinguishable from those cases wherein discharge (or

denial of application) has been predicated upon refusal of

the individual to respond to proper questions. In each of

the cases cited by the Court below, the individual involved

was accorded an opportunity to delineate formally, for the

record, the reasons for his non-response. See, Nelson v.

County of Los Angeles, 362 U. S. 1, Konigsberg v. State

Bar, 366 U. S. 36, In re Anagtaplo, 366 U. S. 82. See also

Beilan v. Board of Education, 357 U. S. 399 (a teacher’s

- dismissal followed a formal hearing), Lerner v. Casey, 357

U. S. 468 (the statute required dismissal to be after in-

vestigation’’ and based upon all the evidence“. Further-

more, in that case, Lerner appeared before the Department

of Investigation three times, twice with counsel.). Thus

the crucial constitutional distinction involved in the em-

ployee dismissal cases and the ease at bar is evident. a

This case presents this Court with a elean issue as to the

right of a hearing to the appellants involved. It seems that

in no case before this Court has a definitive determination

of the issue been had. The issue. has, of course, arisen

: collaterally in cases previously mentioned. This Court

should finally resolve the matter as it is serious and im-

kgf

a —

portant, as it concerns the lives of hundreds of people

throughout the State University system. And see gen-

‘erally Murphy, Academie Freedom—An Emerging

Constitutional Right’’, 28 Law and Contemporary Prob-

lems, 447, 481-483.

2. The burden of proof is shifted.

The membership portion of the statutory scheme in-

volved provides that no one shall obtain or retain public

employment in the State of New York who become |

a member of any society or group of persons which teaches

or advocates that the government of the United States or of

‘any political subdivision thereof shall be overthrown by

force or violence or by any unlawful means’’, Civil Service

Law, Section 105 (1) (e). See also Penal Law, Section

161(4).

Civil Service Law, Section 105(2), Education Law, Sec-

tion 3022(2) and the Rules of the Board of Regents, Article

XVIII, Section 244(2) provide in essence that the Board of

Regents shall after inquiry and notice, make a

listing of organizations which it finds to be sub-

versive, in that they violate the provisions of former 12-a

of the Civil Service Law (now Section 105). It is further

provided that evidence of membership in any organization

. so listed on or after the tenth day subsequent to the date

of official promulgation of such listings shall constitute

prima facie evidence of disqualification for appointment to

or retention of any office or position in the school system.

Additionally, evidence of membership in such an organiza-

tion prior to the said date shall be presumptive evidence

that membership has continued in the absence of a showing

that such membership has been terminated in good faith.

Furthermore, once a determination of ineligibility has

been made, the party declared ineligible may have a

heating in the Courts at which time the person declared

ineligible shall have an opportunity for cross examination.

Once the party involved has presented substantial evidence

contrary to the presumptions mandated by the statute,

the burden of sustaining the validity of the order of dis-

missal or ineligibility by a fair preponderance of the evi-

dence shall be upon the perton making such order.

The obvious purpose and effect of the prima facie

characteristic of the statute, together with the listing au-

thority, is to relieve the State from the burden of having

to prove in any disciplinary hearing the major elements of

its case. At any hearing, only one fact need be establish-

ed: membership. Having done so, the State can rest.

This is so, since under the Regents’ listing of the Com-

munist Party of the United States and of New York, the

State would be able to avoid independent proof as to the

nature of the organization listed. Thus, the individual in-

volved would be faced with the onerous burden of rebut-

ting the presumptions created. All membership is deem-

ed guilty membership by reason of the fact that at any

hearing the only issue involved with respect to organiza-

tions listed the employee’s knowledge of its ends and

goals. Without benefit of trial, members of the proscribed

organization are branded and stigmatized with the illegal

aims of the group. Nothing further need be shown except

that the individual is a knowing member of the organiza-

tion. And for such membership, the scholar or teacher

involved, or indeed, any member of the Civil Service of

‘the State of New York is forever barred from employ-

ment in the service of the State. This is guilt by associa-

tion with a vengeance. Appellants maintain that if one

ignores semantics for substance, there has been an uncon-

- stitutional shifting of the burden of proof within the hold-

ing of Speiser v. Randall, 357 U. S. 513. The basic hold-

ing of Speiser is that when First ent freedoms

are at stake, the burden of proof canno be shifted to the

individual. The State here will maintain that the burden

of persuasion in the whole case is always on the one bring-

ing the charges. But the statutory language cannot alter

fact. The fact is that the major elements of the State 's

case are initially presumed. Appellants maintain that the

rationale of Speiser is broad enough to cover the case at

bar and that thus a serious and important constitutional

question is raised. Speiser turned on the vital importance

of First Amendment freedoms and it would be remarkable

if the Supreme Court were to allow that decision to be-

come a shell by upholding systems which presume all

major elements of a state case except one.

Additionally, with respect to appellant Starbuck, the

State has demanded of him, as was demanded of the indi-

viduals in Speiser v. Randall, supra, that he take the first

step, execution of an answer to the question. Clearly re-

quiring the execution of an answer to the question places

the burden of persuasion and proof upon appellant Star-

buck, and necessarily results in the deterrents of speech

which the Constitution makes free. It presumes guilt and

non-employability of all state employees, presuming either

that they advocate the prohibited doctrines, or that they

are members of the prohibited organizations. If and only

if Starbuck comes forward and executes the proper answer

will he become a member of the favored group, the group

eligible for State employment. The question is asked of

all alike—the loyal and the disloyal. In other words, the

question presumes non-employability and then shifts onto

‘Starbuck. on pain of prosecution for perjury, the task of

determining his own eligibility. Such a procedure is pro-

hibited to the State, Speiser v. Randall, supra. The ques-

— ee

e ;

C. The question whether the complex is bill of a

tainder.

There is raised by this lawsuit the question of whether

the statutory scheme here under attack is a bill of at-

tainder. Appellants maintain that the complex inflicts

punishment without a judicial trial. While this Court has

not yet decided that loss of public employment. constitutes

punishment, see Garner v. Los Angeles Boaru, 241 U. 8.

716 at 721, it seems clear that

Disqualification from the pursuits of a l avoca-

tion * * * may also and often has been im *

ver ~~ it ve v. Missouri, 4 all 277 at

p. 320.

New York Civil Service Law 105(1)(c) provides. that

no one shall obtain or be retained in public ecaployment

who

‘<* become a member of any group of per-

sons which * * * advocates that the government of the

United States or of any political subdivision thereof

shall be overthrown by force or violence or by od

unlawful means.

‘For the bea! ere of this Section, Wb in the

Communist 8 of the United States of America or

the Communist Party of the State of New Tork shall

constitute prima facie evidence of ualification for

appointment to or retention in any office or position

in the service of the state or of any city or oil sub-

division thereof.“

l e e e e e

oreated a rule of evidence with respect to membership in

certain. groups which the individual involved can rebut.

The fact of the matter is that under the system as set up

by the State, members of the Communist Party of the

mr ²˙ w ⅛—u p . AARON EL ERE RAE NN RA Ee EN NN A RRB A Sn

United States of America and the Communist Party of

the State of New York are presumed guilty and disqualified

from public employment unless they can first remove the

guilt. The serious constitutional questions raised by such

a system have come before the Supreme Court in another

context. Thus, in Cummings v. Missouri, 71 U. S. 277, at

page 320, the Court stated:

“The existi 3 ;

and r D their

right to preach or teach unless the presumption be

CCC

wo assume ilt judge ish-

ment 3 The clauses supposed differ only

in that they declare the guilt ins of assuming it.

The deprivation is affected with equal certainty in the.

one case as it would be in the other, but not with equal

ROE OE SE Ea of — 3 r in the case

opposed w openly avowed; in case existing

it is only disguised. The legal result must be the same,

for what cannot be done directly, cannot be done in-

directly. The Constitution deals with substance, not

shadows. °

The Court below, in holding the-complex not to be a

bill of attainder, placed particular reliance upon the fact

that the proscription was not based on an original deter-

mination by the State Legislature of the aims of the Com-

munist Party but rather was based upon the findings of the

Board of Regents which, after extensive hearings, listed

the two organizations under Section 3022 of the New York

State Education Law.

This reasoning ignores the fact that the Board of Re-

gents listed the Communist Party of the United States

and the Communist Party of the State of New York as

proscribed organizations in 1953 (emphasis supplied). The

-erucial constitutional factor involved here is that the State

Legislature took cognizance of the listing by the Board of

Regents ini1958 (emphasis e * years after the

original determination.

It is clear from the preamble to the amendment incor-

porating the reference to the two parties that the purpose

of the reference was to bring Section 105 into harmony

with the determination of the Board of Regents under Sec-

tion 3022. N. Y. Session Laws, c. 503, § 1 (Appendix, infra,

page 59). An examination of that preamble indicates

‘that the Legislature considered nothing other than the

fact of listing by the Board of Regents.

It seems clear, therefore, that the Legislature of thie

State of New York in 1958 made an original determina-

tion that the Communist Party of the United States and

the Communist Party of the State of New York were or-

ganizations which fell within the prohibitions of the eom-

plex involved here. The Legislature must have found,

that is, as of 1958 at least, that the organizations listed by

the Board of Regents in 1953 continued to possess the

characteristics which had led to the original listing. Thus

we had a trial by Legislature’’, United States v. Brown,

381 U. S. 437 at 442.

The seriousness and substantiality of the federal ques-

tions raised by the manner in which the New Lork-TLegis-

la has proceeded to move forward in this caserare

readily apparent. The New York Legislature could not

constitutionally assume that the findings which underlay

the listing of the organizations involved in 1953 were suffi-

cient to support the legislative amendment of 1958. It is

submitted that after a period of five years, such findings

by the Board of Regents were stale. It is further sub-

mitted that since it is First Amendment freedoms we are

dealing with, the remoteness of the findings is certainly

an element which the Court should consider. The com-

plex is a bill of attainder and the manner in which the

State Legislature has proceeded should be carefully seru-

tinized by the entire Court.

D. The question whether the New York complex is an

ex post facto enactment.

It has previously been mentioned that the statutory

scheme in New York is essentially exclusive and is not

designed merely to elicit information. Information as to

past activity in subversive groups brings into play the

exclusionary mechanism of the statute and the application

of legislatively determined presumptions. It cannot be

denied that presumptions once operative present a for-

midable er to continuing employment. Past member-

ship in rr groups is presumed to have continued

unless teihination of such membership in good faith can

be shown. Clearly to burden an employee with such a

presumption for an act remote in the past, which act

may have taken place prior to the enactment of the legisla-

tion, is to punish that individual for innocent past acts.

Indeed, such membership may have been in the 1930’s

when the Communist Party, for example, was just another

political party, see Cramp v. Florida, 368 U. S. 278 at 286.

To allow the projecting back of present anxieties and fears

to acts which in the past were innocent, presents a real

danger to our liberties. The creation of the presumption

here is punishment since the consequences of the presump-

tion are substantial. Further, the impact of this ex post

facto enactment on First Amendment freedoms is con-

siderable. The vice in this complex is that it creates a

disability for Conduct which has already taken place. To

sanetion such a principle leaves no speech or association

of the Present eee.

— —

— 7

When considering this question, we ask this Court to

take note of the fact that theyé is a distinction between

legislation where the ez post facto elements create a sub-

stantial disability as in our case with the creation of pre-

sumptions, and legislation where the ex post facto ele-

ments require compulsory revelation without specific con-

sequences as in many employee dismissal cases. The first

situation with its officially imposed disadvantages is truly

er post facto, while the second, equally offensive, has its

greatest impact in the area of the First Amendment free-

doms.

In view of the above, it is believed that the question pre-

sented by this appeal with respect to the ex post facto

provisions of the complex are substantial and directly

raise fundamental constitutional issues. See Calder v:

Bull, 3 U. S. 386 at p. 390. See also Cummings v. Missouri,

71 U. S. 277 (it is now clear that legislation which is es-

sentially punitive cannot escape censor merely because it

is cast in civil form).

Conclusion

The statutory scheme involved here is highly unique

and complex. The constitutional issues involved are those

which are continually rising in an age when international

distrust and fear have become a way of life. See Baggett

v. Bullitt, 377 U. S. 360 at 366. The State will indicate

that the government’s purpose in enacting and enforcing

these statutes is the elimination of those tainted with dis-

loyalty from the school system of the State. If we assume

~arguendo, that such a legitimate State need in the pres-

ent circumstances, the State, according to the decisions

of this Court is gtill not free to subjugate liberties if its

desired ends can alternatively be achieved in a manner

“which is less restrictive of constitutional rights.

Applying this concept to the case at bar, appellants be-

lieve that a substantial federal question is raised as to

the unconstitutionality of this complex and that the State’s

purpose could obviously be accomplished in a manner which

does not involve a wholesale invasion of constitutional

rights. The statutes are a jumble of vague, broad, indis-

eriminately worded provisions which severely impair con-

stitutional rights without any evidence that there are not

less restrictive means to accomplish the basic State pur-

It is submitted that the elimination of the statutes will

in no way interfere with the State’s goal of obtaining fit

and competent teachers nor will it prevent the imposition

of honest and legitimate qualifications for the teaching

profession. Men have struggled for centuries to establish

and preserve the delicate freedoms with which we are

here concerned. These freedoms cannot be preserved

where a public authority can demand of an individual that

he make a choice between his constitutional liberties and

his economic well-being. It is only too evident that con-

fronted with such a decision, most men, reluctant though

they may be, will choose to feed their families rather than

make a stand. There were hundreds at the University of

Buffalo who were opposed to the certificates in question.

Only five had the courage to stand against economic coer-

‘ion. Ri oe SO Ve ny e OE Gide WAS Up.

posed the certificates, but who in the end signed, should

in any way be diminished. They acted from an impulse

profoundly basic in any society—the impulse to preserve

and maintain the economic status of their families. The

very fact that men can be put to the test in such a manner

is reason enough for this Court to critically analyze the

complex before it.

Respectfully submitted,

RICHARD LIPSITZ, ESQ.,

Attorney for Appellants,

Office & Post Office Address,

One Niagara Square,

Buffalo, New York 14202.

Rosario J. DiLorenzo, with

Ricnazp Lipsitz, on the Statement.

—4— 1a Ha lr Arran CEPT “9

Opinion |

UNITED STATES DISTRICT COURT

‘Western District or New You *

HARRY KEYISHIAN, GEORGE HOCHFIELD, NEW.

TON GARVER, RALPH N: MAUD, and

GEORGE E. STARBUCK,

PEOGUT AHS Plaintiffs,

BOARD OF REGENTS OF THE UNIVERSITY OF

THE STATE OF NEW YORK, BOARD OF TRUS-

TEES OF THE STATE TT OF NEW

YORK, STATE UNIVERSITY OF NEW YORK AT

BUFFALO, SAMUEL B. GOULD, CLIFFORD C.

FURNAS, J. LAWRENCE MURRAY, ARTHUR LEV-

ITT, ARTMENT OF CIVIL SERVICE OF THE

STATE OF NEW YORK, CIVIL SERVICE COMMIS-

SION OF THE STATE OF NEW YORK, MARY

GOODE KRONE, and ALEXANDER A. F

Defendants.

Civil Action File No. 10,994.

. C. J., Burxe, Ch. J. and HAN DRR-

Before: Moonx, LU.

Appearances:

Richard Lipsitz, of Lipsitz, Green and Fahringer, Buf-

falo, New York (Rosario J. DiLorenzo on the brief), for

plaintiffs.

John C. Crary, Jr. (Richard A. Foster and David L.

Segal on the brief), for defendants Board of Trustees—

State University of New York, State University of New

York at Buffalo, Clifford C. Furnas, Samuel B. Gould,

and J. Lawrence Murray.

K e ddp / A w ALATA TELE LOLS SLE

Ruth Kessler Toch (Louis J. Lefkowitz, Attorney Gen-

eral of the State of New York, on the brief), for defend

ants Board of Regents of the University of the State of

New York, Department of Civil Service of the State of

New York, Civil Service Commission of the State of New

York, Mary Goode Krone, and Alexander A. Falk.

Moonx, C. J.

This suit challenges the constitutionality of Sections

3021 and 3022 of the New York Education Law, Section

105 of the New York Civil Service Law, Section 244 of

Article XVIII of the Rules of the Board of Regents of

the State of New York, and the procedures used under

these various statutes and regulations. Section 105 of the

Civil Service Law and Sections 3021 and 3022 of the Edu-

cation Law, as they are now in effect, are set forth in the

margin.

1 Civil Service Law :

§ 105. Subversive activities: disqualification.

or of. which teaches or advocates that the government

of nited i) tater ak a a ee

shall be overthrown by force or violence, or by any unlawful means.

— ͥ—zz.—d . . —

Section 244 of Article XVIII of the Rules of the Board

of Regents, promulgated after the enactment of Section

3022 of the Edueation Law, provides that school authori-

ties shall put into effect certain procedures for disqualifica-

tion and removal of employees: who violate Section 3021 of

(Cmte — from — page)

evidence of disqualification

ment to oF retention ft any office or position in the service of the stat

or of any city or civil division thereof.

2. A person dismissed or declared ineligible pursuant to this section may

within four months of such dismissal or declaration of ineligibili be

;

are

Tee i pay, and if

PPC

pay of such suspension amount compensation

which he may have earned in any other employment or occupation and

Se beneiits he may have received duripg such

period. ln d

rl burden ‘of sustaining

the validity „eee

ance of the credible evidence shall be upon person making such dis-

missal or order of ineligibility

3. Removal for treasonable or seditious acts or utterances. A person in

the civil service of the state or of any civil division thereof shall be

ä For purpose of this subdivision,

word or act mean “treason”, as defined in the penal law ;

or act shall sean “cranioal anarchy” Eid Te ie cue bee

Mee Low

3021. Removal of superintendents, teachers and employees for treason-

able or seditious acts or utterances.

(Footnote continued on following page)

the Education Law or Section 105 of the Civil Service

Law. Before appointment of an employee, the nominat-

ing official shall inquire of his former employers and of

others whether he is known to have violated the statutory

provisions, and no person found to have violated the stat-

utes shall be eligible for employment. Each year school

authorities shall prepare a report on each employee, stat-

ing whether there is any evidence, including membership

in an organization listed as subversive by the Board of

Regents, indicating that the employee has violated the

statutes. If there is such evidence, the reporting official is

to recommend the employee’s dismissal, and within 90

days after the recommendation has been submitted, the

(Footnote continued from preceding page)

three thousand twenty-one of this article or who are ineligible for appoint-

eet Se SS OS 2 iy Se SF aes oe ee eee eee oe

such institutions of higher education on any of the grounds set forth in

section twelve-a of the civil service law and shall provide therein

priate methods and procedure for the enforcement of such sections of this

article and the civil service law.

2. The board of regents shall, after inquiry, and after such notice and

hearing as may be appropriate, make a listing of organizations which it

finds to be subversive in that they advocate, advise, teach or embrace the

doctrine that the government of the United States or of any state or of

or embrace the duty, necessity or propriety of adopting any such doctrine,

as set forth in section twelve-a of the civil service law. ee

inquiry, may utilize any similar listings or designations promulgated by any

eral agency or authority authorized by federal law, regulation or execu-

tive order, and for the purposes of such inquiry, the board may request

Ey yyy es ee a pp

regulations required by

2 such organization included in such listing made by

it shall constitute prima facie evidence of disqualification for intment

to or retention in any office or position in the public schools of state.

2 February. ty — — n Pa —

he Bg, mae oy report, to a statement

y it for the enforcement of such provisions of law and

to require iance therewi reports

—— therewith regents, from time to oo: Sets Be ory be

appropriate, to ascertain the extent to which such provisions of la ve

been enforced in the city and school districts of the tate

r Seishin e ial the

Education Law, now appears A (2) of the Civil Service

Law, N. Y. Sess. Laws, ch. 790, § 10

school authorities must either prefer formal charges: or

_ reject. the recommendation. If charges are preferred

against persons serving on probation or having tenure,

statutory. dismissal procedures shall be followed. In

proceedings against persons serving under contract and

not under the provisions of a tenure law, the school authori-

ties shall conduct such hearings * * * as they deem the

exigencies warrant, before taking final action on dismissal.

Tn all cases, all rights to a fair trial, representation by coun-

‘sel and a or court review as provided by statute or

N Constitution shall be scrupulously observed.“

5 The State University of New Vork at Buffalo, attempt-

ing to comply with the Regents’ rules, distributed to all

members of the academic staff a booklet containing the

‘Regents’ rules and the underlying statutes, and required

each faculty member to sign a certificate (the ‘‘Feinberg

certificate’’) declaring that he had read the Regents’_rules

that the rules and the statutes cited therein constituted

terms of his employment; and that he was not now a mem-

ber of the Communist Party and if he ever had been, he

had communicated that fact to the president of the uni-

versity.

Four of the five plaintiffs in the present action—Keyish-

ian, Hochfield, Garver, and Maud, all under term appoint-

ments to the academic staff of the University—declined to

sign the certificates, and were notified that if they did not

sign as requested their terms would not be renewed on

grounds of insubordination. Keyishian's term has ended

and his appointment has not been renewed. The terms of

two of the other three have not expired and they remain in

their former positions. They have been informed that

dismissal proceedings will not be started against them un-

til the validity of the statutes, rules, and procedures is de-

SEE i ————.———7§r—ꝙv—7;?ð— —à—ig

termined. in the present suit. Maud accepted a position

after his term expired in September 1965, again subject to

the determination of the present suit, but has resigned

from the university.

The fifth plaintiff, Starbuek, was 1 on Septem-

ber 1, 1963, to a one-year term as a specialist in acquisi-

tions for the library. After starting work he was required

to fill out a form, one question of which asked: Have

you ever advised or taught or were you ever a member

of any society or group of persons which taught or advo-

cated the doctrine that the government of the United

States or of any political subdivision thereof should be

overthrown or overturned by force, violence, or any unlaw-

ful means?“ He refused to answer and was dismissed

from his appointment on June 18,1964.

On July 8, 1964, the plaintiffs brought a class action

against a large part of the educational hierarchy of the

State of New York, seeking an injunction against enforee-

ment of the civil statutes concerning employment of sub-

versives and of the regulations and procedures used to

implement those statutes. The Distriet Court held that

no substantial federal question was raised, and accordingly

refused to refer the case to a three-judge district court.

233 F. Supp. 752 (W. D. N. V., 1964). The Court of Ap-

peals for the Second Circuit reversed and directed that the

case be heard before a three-judge court. 345 F. 2d 236

(2 Cir., 1965).

I. The Constitutionality of the State’s Objective.

The plaintiffs argue in part that the complex of *

regulations, and procedures under attack has no constitu-

tionally valid objective—that they infringe upon freedom

TS SSAA

of expression without mien ee 5 any e

state interest. «

The Supreme Court in the Adler case, considering stat-

utes the predecessors of the ones now in question, described

the importance of the state interest in preventing the use

of the educational system as a platform for urging stu-

dents to overthrow government by violent means:

„A teacher works in a sensitive area in a school-

room. There he, shapes the attitude of young minds

towards the society in which they live. In this, the

state has a vital concern. It must preserve the integ-

rity of the schools. That the school authorities have

the right and the duty to screen the officials, teachers,

and employees as to their fitness to maintain the

integrity of the schools as a part of ordered society,

cannot be doubted.”’

Adler v. Board of Education, 342 U. S. 485, 493

(1952).

The Supreme Court has not changed its recognition of

the importance of this state interest in recent cases. In

1958, it quoted the above language from Adler with ap-

proval, in upholding the dismissal for ‘‘incompetency’’

of a Pennsylvania school teacher who refused to answer a

question as to his activities in the Communist Party.

Beilan v. Board of Public Education, 357 U. S. 399 (1958).

In Barenblatt v. United States, 360 U. S. 109 (1959), the

Court upheld the contempt conviction of a former teach-

ing fellow at the University of Michigan, based on his

refusal to answer questions of a congressional committee

as to his past and present membership in the Communist

party. The Court indicated that Congress had a legitimate

interest in ‘‘inquiring into the extent to which the Com-

munist Party has succeeded in infiltrating into our uni-

versities * * * persons and groups committed to further-

ing the objective of overthrow.’’ 360 U. S. at 129. In

— —᷑— EE EEEEEEEEEEEEEEe

Cramp v. Board of Public Instruction, 368 U. S. 278 (1961),

the Court struck down as unconstitutionally vague a Flor-

ida statute requiring state employees to swear that they

had never lent their aid, support, advice, counsel, or in-

fluence to the Communist Party’’; but the Court did not

question the power of a State to safeguard the public

service from disloyalty.’’ 368 U. S. at 288. Nor does the

recent decision of Baggett v. Bullitt, 377 U. S. 360 (1964),

cast any doubt upon the power of a state to act to prevent

the incitement of violent overthrow on university cam-

puses. :

The plaintiffs argue that the legitimate state objective

recognized by the Court in Adler is not present here, since

the teachers here hold positions at. universities rather than

at public schools. The argument appears to be based upon

the comparative maturity of mind of the university stu-

dent, which entitles him to the privilege of exposure to

conflicting political philosophies. But as the American

Association of University Professors wrote in their amicus

brief in Barenblatt, supra, a case involving a university

teacher, ‘‘The claims of academic freedom cannot be as-

serted unqualifiedly. The social interest it embodies is

but one of a larger situation, within which the interest

in national self-preservation * * * also prominently ap-

pear[s].’’ Brief, p. 24. It would not be constitutional to

prevent the teaching of Communist philosophy at the uni-

versity level; but it would be dangerously anomalous to

proscribe the advocacy of violent overthrow of govern-

ment in all parts of the United States, see Dennis v. United

States, 341 U. S. 494 (1951), except in the breeding-grounds

of the future leaders of the nation. The interest in na-

tional self-preservation—‘‘the ultimate value of any so-

ciety,“ Dennis at 509—applies to the university campus

as well as to the rest of our society.

II. The Constitutionality. of the n Dood. fe ‘Attain

the State’s Objective. a

The plaintiffs maintain that even if the statutes and

regulations under attack assert a legitimate state objec-

tive, they do so in a manner which unduly restricts other

interests protected by the Constitution. The plaintiffs in-

_ voke a variety of constitutional clauses in support of their

position.

A. The Ex Post Facto Clause.

An ex post facto law is one which imposes a punish-

ment for an act which was not punishable at the time it

was committed; or imposes additional punishment to that

then prescribed ; or changes the rules of evidence by which

less or different testimony is sufficient to convict than was

then required.’’ Cummings v. Missouri, 71 U. S. 277, 325-26

(1867).

In the present case, the plaintiffs either have been dis-

missed or are threatened with dismissal for failure to an-

swer questions put to them under procedures designed to

implement § 3022 of the Education Law, which was made

applicable to colleges in 1953. Before being dismissed or

threatened with dismissal, the plaintiffs were repeatedly

told the purpose of the questions, the statutory basis for

the questions, and the possibility that dismissal proceed-

ings would be started if they failed to answer the questions.

The proscription of their conduct preceded the conduct it-

self, so that the ex post facto clause does not apply. See

Garner v. Board of Public Works, 341 U. S. 716, 721

(1951), in which the Court rejected an argument that

dismissal of municipal employees for failure to take an

oath was ex post facto punishment, with the observation

that the activity covered by the oath had been proscribed

years before the employees were asked to take the oath.

— — '

B. The Bill of Attainder Clause.

Legislative acts, no matter what their form, that 41850

either to named individuals or to easily ascertainable mem-

bers of a group in such a way as to inflict punishment of

them without a judicial trial are bills of attainder prohibit-

ed by the Constitution. United States v. Lovett, 328 U.

S. 303, 315-16 (1946). The plaintiffs contend that Section

3022 of the Education Law, coupled with the Regents’ reg-

ulations under that section and Section 105(1)(c) of the .

Civil Service Law, constitute a bill of attainder, since these

provisions single out as ineligible for employment in state

schools members of the Communist Party of New York

and of the Communist Party of the United States. A

similar argument was made and rejected in the Adler

case. ä

The plaintiffs put particular reliance on United States

v. Brown, 381 U. S. 437 (1965), in which the Court held

unconstitutional as a bill of attainder a statute making it

criminal for anyone who is or has been a member of the

Communist Party’’ to serve as an officer of a labor union

within five years of the termination of his membership

in the Communist Party. However, the statute attacked

in the Brown case differs fundamentally from the stat-

utes and regulations challenged here in the nature of the

part played by the legislature in determining the underly-

ing facts from which adverse consequences would follow.

Assuming without deciding that dismissal from state em-

‘ployment can constitute ‘‘punishment’’—a question left

open in Garner, 241 U. S. 716 at 721 (1951) and not touched

upon in Brown—the bill of attainder clause only forbids

-‘*punishment’’ imposed by a legislature as a result of

trial by legislature.’’. Brown, 381 U. S. at 442. It is the

-unfairness of trial by a large body ‘‘peculiarly suscepti-

ble to popular ¢clamor,’’ 1 Cooley, Constitutional Limita-

tions, 536-37 (8th ed. 1927) that underlies: the bill of at-

tainder clause. The Court in Brown faced a statute in-

volving just such a ‘‘trial by legislature’’—a statute which

specified the Communist Party by name, and made it a

orime— automatically and inoontestably for a Party mem-

ber to hold union office.

In the present case, disqualification from employment

in the state schools did not follow automatically from a

legislative determination that the Communist Party was

a bad organization. Section 3022 of the Education Law

‘provided that the Board of Regents shall, after full notice

and hearing, make a list of organizations which it finds

advocate the doctrine that government should be over-

thrown by force, violence, or other unlawful means. It

was only after extensive hearings that the Board of Re-

gents lists two organizations under Section 3022; the Com-

munist Party of New York and the Communist Party of the

United States. These determinations were subject to ju-

dicial review under Article 78 of the Civil Practice Act,

now Article 78 of the Civil Practice Law and Rules.

Thompson v. Wallin, 301 N. Y. 476, 493, 95 N. E. 2d 806

(1950), af d sub nom. Adler v. Board of Education, 342

U. S. 485 (1952).

Section 105 (1) (e) of the Civil Service Law, which makes

membership in either the Communist Party of New York

or that of the United States ‘‘prima facie evidence’’ of

disqualification for the state civil service, was based not

on an original determination by the state legislature of

‘the aims of the Communist Party, but upon the findings

of the Board of Regents under Section 3022 of the Edu-

cation Law. The preamble to the amendment incorporat-

ing the reference to the two parties makes clear that the

purpose of the reference was to bring Section 105 into

‘harmony with the determinations of the Board of Regents

e e ꝗ¶ dd . d eS ee

under Section 3022. N. T. Sess. Laws 1958, c. 503, 5 1.

Again unlike the statute struck down in Brown, Sections

105(1)(c) of the Civil Service Law and 3022 of the Edu-

cation Law make membership in the Communist Party

only prima facie evidence of disqualification’? from state

employment, The presumption is rebuttable; at a hear-

ing, the employee ‘‘may deny (a) membership; (b) that

the organization advocates the overthrow of the govern-

ment by force; and (c) that he has knowledge of such

advocacy.’’ Lederman v. Board of Education, 276 App.

Div. 527, 530, 96 N. Y. S. 2d 466, 470 (2d Dept. 1950),

aff’d sub nom. Thompson v. Wallin, 301 N. T. 476,

95 N. E. 2d 806 (1950), aff’d sub nom. Adler v. Board of

Education, 342 U. S. 485 (1952). As the New York Court

of Appeals stated in Thompson v. Wallin:

‘‘The phrase ‘prima facie evidence of disqualification’

* * * imports a hearing at which one who seeks ap-

pointment to or retention in a public school position

2 The text of the preamble is as follows:

“Declaration of legislative intent.

The legislature takes cognizance that section three thousand twenty-two of

of section twelve-a of the civil service law [now Section 105 of the Civil

Service Law] with respect to the elimination of subversive from

the public school system; that such section three twenty-two

authorizes the board of regents, after notice and hearing, to list

S ing, has so listed the com-

munist party of the United States of America

thousand

twenty-two and and regulations thereunder membership in

mtrary evidence has been received, how-

ev ae, ‘thé official who made the order of ineligibility

— thereafter the burden of sustaining the validity

of that order by a fair preponderance of the evidence.

301 N. Y. 476 at 494, 95 N. E. 2d 806 at 814-15. See also

Hughes v. Board of Higher Education, 309 N. Y. 319,

130 N. E. 2d 638 (1955).

! ‘The disqualification of a teacher under these laws, in

decir not the result of a ‘‘legislative trial’’. The legis-

lature in the first instance—in enacting Section 3022 of the

Education Law—did nothing more than, in the language of

Brown, 381 U. S. at 450, ‘‘set forth a generally applicable

rule“ as to the characteristics of organizations, member-

ship in which should be evidence of disqualification. The

determination of what organizations possessed those char-

acteristics was left to an administrative body, to be made

‘after notice, hearing, and opportunity for judicial review.

The case closely resembles Communist Party v. Subver-

sive Activities Control Board, 367 U. S. 1 (1961), in

which the Court, holding that the Subversive Activities

Control Act of 1950 was not a bill of attainder, stressed

the orucial constitutional significance of what Congress

did when it rejected the approach of outlawing the Party

by name and accepted instead a statutory program regulat-

ing not enumerated organizations but designated activi-

ties, 367 U. S. at 84-85, and pointed out that the initial

findings under the Act must be made after full adminis-

trative hearing, subject to judicial review * . Id. at 87.

If anything, the statutes now under attack are less like

a dill of attainder than the act held constitutional in Com-

munist Party v. Subversive Activities Control Board, since

the New York statutes. provide opportunity for hearing

and judicial review not only for the organizations listed,

but also for their members. In short, in terms of a recent

analysis of the history and purpose of the bill of attainder

clause, the New York legislature here laid down ‘‘rules of

general applicability’’, leaving ‘‘the job of application to

other tribunals.“ Comment, The Bounds of Legislative

Specification: A Suggested Approach to the Bill of At-

tainder Clause, 72 Yale L. J. 330, 347, 350 (1962).

C. The Due Process Clause.

Plaintiffs’ principal challenge to the New York statutes

and procedures is based on the protection afforded to free

speech by the First Amendment, applicable to the states

under the Fourteenth Amendment. Plaintiffs maintain

that the New York laws and procedures impinge upon

the rights of freedom of speech, thought, and expression

more than is necessary to protect the state from violent

overthrow, both by being too broad and vague, and by

imposing an unfair burden on those who may be adversely

affected, requiring them to justify their conduct.

1. Procedural Due Process and Spetser v. Randall.

Plaintiffs’ ‘‘burden of justification’’ argument rests in

large part on Speiser v. Randall, 357 U. S. 513 (1958), in

which the Court held to be against due process a Cali-

fornia statute which required veterans to file oaths declar-

ing that they did not advocate the overthrow of government

by force, violence, or other unlawful means, before they

could receive a state tax exemption. The essence of the

Court’s opinion was that. by putting the burden of taking

the first step and of proving eligibility on the applicants,

the statute made it more likely that the exemption would

be denied in borderline cases, and therefore that ‘‘legiti-

mate utterance will be penalized.’’ 357 U. S. at 526. The

Court distinguished the Garner and Douds cases, in which

| oan Neate aan etn eR EERE

oaths were upheld as valid prerequisites to state employ-

ment and union office, by pointing out that those cases

concerned a limited class of persons in or aspiring to

public positions by virtue of which they could, if evilly

motivated, create serious danger to the public safety, id.

at 527, and that in those cases persons by taking the oaths

could retain their positions subject to further, proceedings

in which the government would have the burden of proof.

The Court also distinguished the New York statutes up-

held in Adler, on the grounds that under those statutes

‘*public-school teachers could be dismissed on security

grounds only after a hearing at which the official pressing

the charges sustained his burden of proof by a fair pre-

ponderance of the evidence.’’ 357 U.S. at 528 n. 8.

Later decisions have made clear that Speiser does not

create a rule of law that a potential suspect in an area con-

cerning freedom of speech must never be called upon to

justify his conduct. E.., Nelson v. County of Los An

geles, 362 U. S. 1 (1960), upholding discharges of county

employees based upon their refusal to answer questions

concerning subversive activities put to them by a congres-

sional’ subcommittee; Konigsberg v. State Bar, 366 U. S.

36 (1961) and In re Anastaplo, 366 U. S. 82 (1961), holding

that admission to a state bar could be denied on the basis

of an applicant’s refusal to answer questions concerning

Communist activities. Instead, Speiser holds that in a

case concerning First Amendment freedoms, the burden

of proof must rest upon the attacker as much as possible,

consonant with the seamen of the legitimate interest

enten by the attacker.

In the present case, the university requirement that all |

teachers sign ‘‘Feinberg certificates’? may have raised

problems under Speiser, although apparently the teachers

could retain their positions by signing the certificates, sub-

ject. only to further proceedings in which the state would

bear the burden of proof. But the university has discon-

tinued its reliance on the certificate procedure, as of June

10, 1965. The state now investigates prospective appoint-

ees by asking the candidate and others questions concern-

ing his compliance with the laws. The candidate is given

a chance to explain his doubts, not provided under the

certificate procedure. Absolute refusal to answer is made

grounds for refusal to appoint; but this seems reasonable,

in light of the opportunity to explain. Persons employed

before June 10, 1965, shall not be deemed disqualified

solely by reason of’’ their failure to sign the Feinberg

certificate. The State thus would have the burden of show-

ing violations of the statutes, following the statutory pro-

cedures for dismissal as to teachers with tenure.

Plaintiffs maintain that teachers serving on contract

and without tenure are denied procedural due process,

since they are guaranteed by the Regents’ regulations

only ‘‘such hearings * * * as [the school authorities] deem

the exigencies warrant * * In particul..., plaintiffs

point to the dismissal of Starbuck as evidence that the state

will not give an adequate hearing to teachers without ten-

ure.

It appears that after Starbuck failed to answer the

question about subversive activities on his employment

form, he was told that he must answer it yes or no, and

could explain if he answered yes. He did not answer, and

was dismissed. We understand the law of New York to

be in accordance with the advice given to Starbuck by

the university officials. Although a teacher without tenure,

Starbuck would have had an opportunity to explain and

a right to a full hearing on whether or not he had violated

the substantive provisions of the law, if he had answered

the question yes. Hughes v. Board of Higher Education,

ee ee et eee

309.N. V. 319, 130 N. E. 2d 638 (1955); Lederman v. Board

of Education, 276 App. Div. 527, 96 N. V. S. 2d 466 (2d

Dep’t 1950), aff d sub nom. Thompson v. Wallin, 301 N.

Y. 476, 95 N. E. 2d 806 (1950), af d sub nom. Adler v.

Board of Education, 342 U. S. 485 (1952). In light of

this opportunity for explanation and a hearing, Starbuck

cannot complain of lack of procedural due process. His

dismissal] was for insubordination in refusing to answer a

relevant inquiry, and the Constitution does not require

any hearing on one’s reasons for refusal to cooperate with

a relevant inquiry. See Nelson v. County of Los Angeles,

362 U. S. 1 (1960); Konigsberg v. State Bar, 366 U. S.

36 (1961); and In re Anastaplo, 366 U. S. 82 (1961).

Slochower v. Board of Education, 350 U. S. 551 (1956)

may be distinguished, since in that case the Court found

no necessary connection between Slochower’s refusal to

answer questions concerning activities twelve years be-

fore, put to him not by a school board but by a congres-

sional committee, and his unfitness for service in the New

York schools. Here Starbuck refused to answer a ques-

tion put to him by school authorities concerning whether

or not he presently advocated the violent overthrow of

government. — 8

Plaintiffs also assert that the provisions of Section 3022

of the Education Law and Section 105 (1) of the Civil

Service Law which make membership in the Communist

Party prima facie evidence of disqualification for employ-

ment by the state are contrary to procedural due process.

The same argument was before the Supreme Court in

Adler, and the Court decisively rejected it:

Membership in a listed organization found to.

A tae te sa tee, finding that

ernment by unlawful means. We cannot say that such

a finding is contrary to fact or that ‘generality of ex-

perience’ points to a different conclusion. Disqialt

fication follows therefore as a reasonable presumption

from such membership and support. Nor is there here

a problem of procedural due process. The presump-

tion is not conclusive but arises only in a ri

where the person against whom it may arise has a

full opportunity to rebut it * * . , as here,

the relation between the fact found and the presump-

tion is clear and direct and is not conelusire, the re-

quirements of due process are satisfied. t

342 U. S. 485, 494-96 (1952).

In support of its position, the Court looked to the

interpretation of the statute by the New York courts be-

low. Lederman v. Board of Education, 276 App. Div.

527, 530, 96 N. Y. S. 2d 466, 470 (2d Dept. 1950), aff’d

sub-nom. Thompson v. Wallin, supra, 806, 815 (1950). The

courts of New York not having changed their interpreta-

tion of the presumption contained in these statutes, see

Hughes v. Board of Higher Education, 309 N. Y. 319, 130

N. E. 2d 638 (1955), there is no reason to hold the presump-

tion violative of due process today.

2. Pagueness

The plaintiffs maintain that breadth of language ren-

ders the statutes under attack unconstitutional, because it

tends to deter legitimate expression as well as expression

which the State is justified in regulating. It is, of course,

true that strict standards of draftemanship are to be ap-

plied to a statute having a potentially inhibiting effect on

speech ; ‘‘a man may be the less required to act at his peril

here, because the free dissemination of ideas may be the

loser. Smith v. California, 361 U. S. 147, 151 (1959).

However, we must examine the present statutory complex,

as implemented by the Regents’ regulations and as inter-

preted by the New York courts, to see whether it has a

tendency to deter legitimate discussion and activities as

well as to carry out the permissible objective of prevent-

ing the advocacy of violent overthrow of government.

Subsection 2 of Section 3022 of the Education Law

provides that the Board of Regents shall list organizations

found to ‘‘advocate, advise, teach or embrace the doctrine

that the government of the United States or of any state

or political subdivision thereof shall be overthrown * * *

by force’’ or found to advocate, advise, teach, or embrace

the duty, necessity, or propriety of adopting any such doc-

trine . Section 105(1) of the Civil Service Law lists

three causes for ineligibility for employment in the state

civil service; wilfully advocating, advising, or teaching

the doctrine of violent overthrow of government; publish-

ing, editing, or selling any printed matter containing such

a doctrine, while advocating the necessity or propriety of

adopting the doctrine; and organizing or becoming a mem-

ber of a group of persons advocating such a doctrine.

Legitimate activities are not deterred by these sections

of the statutes. Not teaching Communist theory in a

course in economic or political history; only teaching

that government shall or should ‘‘be overthrown * * * by

fore is a basis for adverse consequences under these sec-

tions. Not innocent membership in the Communist Party,

in contrast to, what could have been deterred by the oath

struck down in Weiman v. Updegraff, 344 U. S. 183 (1952);

only knowing membership in an organization advocating

the violent overthrow of .government is grounds for in-

eligibility for- state employment. Lederman v. Board of

Education, 276 App. Div. 527, 530, 96 N. V. S. 2d 466, 470

(2d Dept. 1950), af d sub nom. Thompson v.

Wallin, 301 N. T. 476, 95 N. E. 2d 806 (1950), af d sub

nom. Adler v. Board of Education, 342 U. S. 485 (1952) ;

see also Adler v. Wilson, 282 App. Div. 418, 123 N. T. S.

2d 655 (3d Dept. 1953).

Nor do these sections deter all distribution of Communist

propaganda, or the editing of Communist literature. Un-

der Section 105 (1) (b), a distributor or editor of subversive

literature must also advocate or embrace the ‘‘duty, neces-

sity, or propriety’’ of adopting the doctrine of violent over-

throw, before he can be disqualified from state employment.

Finally, the sections just described do not deter represent-

ing the Communist Party in a lawsuit, or defending the

constitutional rights of the Communist Party in a news-

paper article, or voting for a candidate also supported by

the Communist Party the legitimate activities which the

Supreme Court feared might be deterred by the broad oaths

struck down in Cramp v. Board of Public Instruction, 368

U. S. 278 (1961) (state employees had to swear that they

had never lent their ‘‘aid, support, advice, counsel, or in-

. fluence to the Communist Party’’) and in Baggett v. Bullitt,

377 U. S. 360 (1964) (state teachers had to swear, among

other things, that they did not aid any person to aid in the

commission of any act intended to alter the constitutional

form of government by force or vidlence).

The Supreme Court in Baggett made clear that narrowly

drawn statutes aimed wholly at the control of subversive

activities would be upheld as constitutional. The Court

distinguished the broad oath before it in Baggett from the

oath upheld in Gerende v. Board of Supervisors, 341 U. S.

56 (1951), on the grounds that the Gerende oath required a

candidate for ste’ o office to swear only that he is not en-

gaged ‘‘in one way or another in the attempt to overthrow

the government by force or violence, and that he is not

knowingly a member of an organization engaged in such an

‘attempt.. ‘The sections of the.New York statutes just.analy-

zed proscribe no more thatthe oath upheld in Gerende, and

seem less questionable even than Gerende since they place

the burden of taking the first step and the burden ‘of proof

on the official challenging eligibility. The Supreme Court

upheld these sections, 3022 of the Education Law and

105 (1) and (2) of the Civil Service Law (the last two sub-

sections then being known as 12 (a) of the Civil Service

Law), in Adler v. Board of Education, 342 U. S. 485 (1952),

although the sections were attacked on grounds of vague-

ness at that time. We see no reason to change the result

of that case.

The remaining sections of the statutes under attack seem

at first glance more general. Section 3021 of the Education

Law provides for the removal of school employees ‘‘for

the utterance of any treasonable or seditious word or words

or the doing of any treasonable or seditious act or acts

while employed in the school system. Section 105(3) of the

Civil Service Law provides for the removal of civil servants

from office for ‘‘treasonable or seditious’’ words or acts.

However, the 1958 amendments to section 105 (3) greatly

restricted the scope of that subsection. N. Y. Sess. Laws

1958, ch. 790, sec. 105. Treasonable words or acts“, for

tue purpose of 105 (3), now must come within the ae

tes

659

We do not understand the plaintiffs to challenge this

definition of treason on grounds of vagueness; it is as good

as can be done, and resembles the definition used in Article

III, section 3, of the Federal Constitution. Even the third

clause of the New Vork definition is narrow, having been

construed to apply only in wars against foreign enemies

waged by the State of New York separately from the

United States. People v. Lynch, 11 Johns, R. 549 (1814).

Similarly, ‘‘seditious acts and utterances’’, for the pur- *”

pose of section 105(3), now must come within the definition

of ‘‘criminal anarchy”’ in section 160 of the Penal Law:

„the doctrine that organized government should be

overthrown by force or violence or by assassination of

the executive head or of any of the executive officials

“i of government, or by any unlawful means.“

This is a definition closely connected with the state’s

legitimate interest in self-preservation, and as such is

within the realm of the constitutional under Gerende,

Cramp, and Baggett. We note im passing fhat the 1958

amendment to section 105(3) refers to section 160 of the

Penal Law, entitled ‘‘Criminal anarchy defined’’. The

looser language of section 161 of the Penal Law, entitled

„advocacy of criminal anarchy’’, is not now before us,

although the plaintiffs seem to wish that it were.

The 1958 amendments of section 105(3) did not, by their

terms, extend to the parallel language of section 3021.

But the ry of the two sections—born as successive

sections of an act of 1917, N. Y. Sess. Laws 1917, ch. 416,

secs. 2 and 3—together with the identity of language in the

two sections, indicates that the two must be construed in

pari materia, The presumption that statutes ‘‘will be

construed in such a way as to avoid the constitutional ques-

tion presented, Baggett v. Bullitt, 377 U. S. 360, 375

(1964), reinforces us in the conclusion that the words

“Sgeditious or treasonable acts or words in section 3021,

like their identical twins in section 105(3), must be defined

by reference to sections 2380 and 160 of the Penal Law.

When this is done, sections 3021 and 105(3)—like the

separable but related Sections 3022 and 105 (1) and (2)—

become sharply defined, and can: withstand any possible

III. Conclusion

We find constitutional Section 105 of the Civil Service

Law, Sections 3021 and 3022 of the Education Law, Sec-

tion 244 of Article XVIII of the Rules of the Board of

and the procedures under these statutes and

now in effect at the State University of New York at

Buffalo. We accordingly give judgment for the defendants,

and deny the plaintiffs all the relief requested by them.

756% LEONARD P. MOORE,

U. S. C. J.,

7, HAROLD P. BURKE,

U. 8. P., U. 8: D. C.,

/s/ JOHN O. HENDERSON,

* U. S. D. J. a

January 5th, 1966.

‘UNITED STATES DISTRICT COURT

Western Distaict or New York

Civil 10994

4y.

HARRY KEYISHIAN, GEORGE HOCHFIELD, NEW-

TON GARVER, RALPH N. MAUD, and GEORGE E.

STARBUCK, |

Plamtiffs,

VS.

BOARD OF REGENTS OF THE UNIVERSITY OF THE

STATE OF NEW YORK, BOARD OF TRUSTEES OF

THE STATE UNIVERSITY OF NEW TORK,

STATE UNIVERSITY OF NEW YORK AT BUF-

FALO, CLIFFORD C. FURNAS, J. LAWRENCE

MURRAY; ARTHUR LEVITT, DEPARTMENT OF

CIVIL SERVICE OF THE STATE OF NEW YORK,

CIVIL SERVICE COMMISSION OF THE STATE OF

NEW YORK, MARY GOODE KRONE, and ALEXAN-

DER A. FALK,

Defendants.

LIPTSITZ, GREEN Ax D FAHRINGER,

(Ricnarp Lirsrrz, of counsel),

Buffalo, New York,

Attorneys for Plaintiffs.

JOHN C. CRARY, IR.,

Albany, New York,

Attorney for Defendants, Board of Trus-

tees of the State University of New

York; State University of New York at

Buffalo; Clifford C. Furnas, and J.

Lawrence Murr). |

LOUIS J. LEFKOWI

Attorney General of the

of New York,

(Burn Kessize Tocu, of Counsel),

Attorney for remaining Defendants.

The plaintiffs, employees or former employees of the

State University of New York at Buffalo, move for an or-

—— SS SUNG See puree to Title 28

U. S. C. § 2281.

Essentially, plaintiffs 380k * sections 3021 and

3022 of the New York Education Law, section 105 of the

New York Civil Service Law, section 244, article XVIII of

the Rules of the Board of Regents of the State of New

York, and certain other certificates, oaths and question-

naires promulgated under the authority of the aforemen-

tioned statutes, declared unconstitutional and of no force

and effect. Unless no substantial federal question is

presented, a three judge court must be convened.

As was stated by the Supreme Court in California Wa-

ter Service Co. v. City of Redding, 304 U. S. 252, 255 (1988) :

‘‘(t}he lack of substantiality in a federal question

. either because it is obviously without merit

its unsoundness so clearly results from the

— decisions of this — Court as to

the subject.

In large part the issues raised by the plaintiffs’ com-

plaint were laid to rest by the Supreme Court’s decision

in Adler v. Board of Education, 342 U. S. 485 (1952). View-

ing New York’s clarification of section 3021 and the safe-

guards of individual rights found in New York’s statutory

scheme in light of the Supreme Court’s decisions in Gar-

ner v. Los Angeles Board, 341 U. S. 716 (1951); Adler v.

Board of Education, supra; Beilon v. Board of Education,

357 U. S. 399 (1958); Lerner v. Casey, 357 U. S. 468 (1958);

Nelson v. Los Angeles County, 362 U. S. 1 (1960); Konigs-

2 v. State Bar, 366 U. S. 36 (1961); In re Anastaplo,

6 U. S. 82 (1961) ; Cramp v. Board of Public Instruction,

N. S. 278 (1961); and Baggett v. Bullitt, 377 U. S. 360

(964), the Are finde no Substantial federal question

raised by the remainder of the plaintiffs’ complaint. Ac-

cordingly, plaintiffs’ motion is denied and repeat 8

plaint is dismissed. So ordered.

‘JOHN O. HENDERSON,

United States District Judge.

Dated: September 2, 1964.

UNITED STATES COURT OF APPEALS.

“

HARRY KEYISHIAN, GEORGE HOCHFIELD, NEW-

TON GARVER, RALPH N. MAUD and GEORGE E.

STARBUCK,

Appellants,

BOARD OF REGENTS OF THE UNIVERSITY OF

THE STATE OF NEW YORK, BOARD OF TRUS-

TEES OF THE STATE UNIVERSITY OF NEW

YORK, STATE UNIVERSITY OF NEW YORK AT

BUFFALO, CLIFFORD C. FURNAS, J. LAWRENCE

MURRAY, ARTHUR LEVITT, DEPARTMENT OF

CIVIL SERVICE OF THE STATE OF NEW YORK,

CIVIL SERVICE COMMISSION OF THE STATE OF

NEW YORK, MARY GOODE KRONE, and ALEX-

ANDER A. FALK,

‘

Appellees.

No. 359, Docket 29287.

Argued March 8, 1965.

Decided May 3, 1965.

ty,

Richard Lipsitz, Buffalo, N. Y. (Lipsitz, Green & Fahrin-

ger, Buffalo, N. Y., on the brief), for appellants.

Ruth Kessler Toch, Asst. Sol. Gen. (Louis J. Lefkowitz,

Atty. Gen: of New York, on the brief; Paxton Blair, Sol.

Gen., of counsel), for Board of Regents, Arthur Levitt,

Department of Civil Service, Civil Service Commission,

Mary Goode Krone and Alexander A. Falk, appellees. —

John C. @rary, Jr., State University Counsel, Albany,

N. V. (Richard A. Foster and David L. Segel, Albany, N.

Y., of counsel) for Board of Trustees of State University

of New York, State University of New York at Buffalo,

Cliffori C. Furnas and J. Lawrence Murray, appellees.

Magavern, Magavern, Lowe & Beilewech, Buffalo, N. Y.,

submitted brief, amici curiae. on behalf of American Ass’n

of University Professors and American Civil Liberties

Union (James L. Magavern, Buffalo, N. Y., Bernard E.

Harvith, New York City, Herman I. Orentlicher, Kitty

Blair Frank, Washington, D. C., and Melvin L. Wulf, New

York City, of counsel)..

Before SmirH and MansAII, Circuit Judges, and Mxrz-

nER, District Judge.“

Mans HALL, Circuit Judge:

‘Appellants, faculty members of the State University of

New York at Buffalo, commenced a class action in’ the

United States District Court for the Western District of

New York under 28 U. S. C. A. §§ 2281, 2284 for the conven-

ing of a three-judge district court to pass on the constitu-

tionality of Sections 3021 and 3022 of the New York Educa-

tion Law, McKinney’s Consol. Laws, c. 16, Section 105 of

the New York Civil Service Law, McKinney’s Consol.

Laws, c. 7, and Section 244 of Article XVIII of the Rules

of the Board of Regents of the State of New Vork as well

as the required certificates and oaths.

* Sitting by designation.

™

ist) l tht 1. sy

14 1 u . e

3 —

(Footnote continued 9 page)

tion advocates the violent overthrow of the

aul | a

1“Stare Unrversity OF New. Yorx at BuFFALO

Appellants: refused to sign lo:

by the Board of Regents pursuant to Section 3022.“ The

[tien oS eaten a RRS ARRAS at Sea

complaint is an attack upon the constitutionality of the en-

tire system set up pursuant to the statute requiring the

promulgation of the rules and the reference to the statutes

in the certificates in question. The claim is that the laws

are unconstitutionally vague in violation of the Fourteenth

Amendment and that they inhibit vital thought and speech

in violation of the First Amendment as made applicable to

the states by the Fourteenth Amendment.

[1] Judge Henderson, finding no ‘substantial federal

question presented, refused to convene a three-judge court

and dismissed the complaint (233 F. Supp. 752). Judge

Henderson was correct in his general statement of the law:

‘Unless no substantial federal question is presented, a

three judge Court must be convened.“ Idlewild Liquor

(Footnote continued from preceding page)

set forth in section twelve-a [now section 105] of

2 ee ee ens oe

Corp. v. Epstein, 370 U. S. 713, 715, 82 S. Ct. 1294, 8 L. Ed.

2d 794 (1962). It is likewise true that the lack of sub-

stantiality in a federal question may appear from previ-

ous decisions of the Supreme Court, California Water Serv.

Co. v. City of Redding, 304 U. S. 252, 255, 58 S. Ct. 865, 867,

L. Ed. 1323 (1938). However, we are not convinced that

the issues raised here were determined in Adler v. Board

of Education, 342 U. S. 485, 72 S. Ct. 380, 96 L. Ed. 517

(1952). We, therefore, reverse and remand with instruc-

tions to convene a three-judge court.

While Adler held Section 3022 not to be unconstitutional

as applied to teachers in the public schools of New York,

it specifically refused to pass upon the constitutionality of

section 3021 (342 U. S. at 489, 496, 72 S. Ct. 380) and cer-

tainly did not consider the application of section 3022 to

university faculty members. The certificate here in ques-

tion and several statutory amendments, such as Section

105(3) of the Civil Service Law, are all subsequent to

-Adler. Moreover, there is a significant similarity between

the state laws in question here and those held unconstitu-

tional in Baggett v. Bullitt, 377 U. S. 360, 84 S. Ct. 1316, 12

L. Ed. 377 (1964). Cf. also Dombrowski v. Pfister, 85 S.

Ct. 1116 (April 26, 1965).

[2]. Appellees rely heavily upon the statement in Adler

that, It is equally clear that they [public school teachers]

have no right to work for the State in the school system on

their own terms, 342 U. S. 492, 72 S. Ct. 384. However,

the theory that public employment which may be denied

altogether may be subjected to any conditions, regardless

of how unreasonable, has been uniformly rejected. In less

than a year after Adler the Supreme Court clearly limited

its language in Adler:

Me need not pause to consider whether an abstract

— — ma It is sufficient to

y that constitutional protection does extend to the

_» publie servant whose exclusion pursuant to a statute

is patently arbitrary or diseriminatory.“ g

Updegraf, 344 U. S. 183, 192, 73 S. Ct. 215, 219, 97 L.

Ed. 216 (1952).

See also, Baggett v. Bullitt, 377 U. S. 360, 34 S. Ct. 1316

(1964); Toreaso v. Watkins, 367 U. S. 488, 81 S. Ct. 1688,

6 L. Ed. 2d 982 (1961); Cramp v. Board of Publie Instrue-

tion, 368 U. S. 278, 288, 82 S. Ct. 275, 7 L. Ed. 2d 285

(1961) ; Shelton v. Tucker, 364 U. S. 479, 81 S. Ct. 247, 5

L. Ed. 2d 231 (1960) ; Slochower v. Board of Higher Educa-

tion, 350 U. S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956);

Willcox, Invasions of the First Amendment Through Con-

ditioned Public Spending, 11 Cornell L. C. 12 (1955).

In Wieman the Court noted probable jurisdiction be-

cause of the publie importance of this type of legislation

and the recurring serious constitutional questions which

it presents.“ 344 U. S. at 186, 73 S. Ct. at 216, and as late

as 1964 the Court repeated the identical statement in Bag-

gett, supra, 377 U. S. at 366, 84 S. Ct. at 1319. This case

no less should not be dismissed as lacking in substance.

We, therefore, reverse the judgment below and remand

with instructions to the District Court to convene a three-

judge district court pursuant to 28 U. S. C. A. § 2284.

Statutes and Administrative Rules Involved

Susprvision 1 of Section" 105, New York Civ Sxhvion

Law, is captioned, ‘‘Ineligibility of persons advocating

overthrow of government by force or unlawful means,“

and provides: ; . |

„No person shall be appointed to any office or posi-

tion in the service of the state or of any civil division

thereof, nor shall any person employed in any such

office or position be continued in such employment, nor

shall any person be employed in the public service as

superintendent, principal or teacher in a publie school

_ or academy or m a state college or any other state

educati institution who:

(a) by word of mouth or writing wilfully and de-

liberately advocates, advises or teaches the doctrine

that the government of the United States, or of any

state or of any political subdivision thereof should be

overthrown or overturned by force, violence or any

unlawful means; or

(b) prints, publishes, edits, issues or sells any

book, paper, document or written or printed matter in

any form containing or advocating, advising or teach-

ing the doctrine that the government of the United

States or of any state or of any political subdivision

thereof should be overthrown by force, violence or any

unlawful means, and who advocates, advises, teaches,

or embraces the duty, necessity or propriety of adopt-

ing the deetrine contained-therein; or

member any society or group of persons which

‘teaches or advocates that the government of the United

States or A any political subdivision thereof shall be

» overthrown by force or violence, or by any unlawful

means.

„For the purposes of this section, membership in the

communist party. of the United States of America or

the communist party of the state of New York shall

constitute prima facie evidence of disqualification for

: appointment to or retention in any office or position in

the service of the state or of any city or civil division

thereof. bg r e

Susprvisiow 2 of Srorrox 105, New Yorx Cryn. Service

Law, is captioned, ‘‘A person dismissed or declared ineligi-

ble pursuant to this section may within four months of

such “dismissal or declaration of ineligibility be entitled 50

petition for an order to show cause signed by a justicé of

the Supreme Court, why a hearing on such charges should

not be had, and provides ; , \

‘*Until the final judgment on said hearing is entered,

the order to show cause shall stay the effect of any

order of dismissal or ineligibility on the provi-

sions of this section; provided, however, that durin

such stay a person so dismissed shall be suspend

without pay, and if the final determination shall be in

his favor he shall be restored to his position with pay

for the period of such suspension less the amount of

compensation which he may have earned in any other

employment or occupation and any unemployment in-

surance benefits he may have received during such

period. The hearing shall consist of the taking of tes-

timony in open court with opportunity for cross exami-

nation. The burden of sustaining the validity of the

order of dismissal or ineligibility by a fair preponder-

ance of the credible evidence shall be upon the person

making such dismissal or order of ineligibility.’’ |

Suspivision 3 of Section 105, New Yorx Crvi Service

Law, is captioned, ‘‘Removal for treasonable and seditious

acts or utterances,’’ and provides:

„A person in the civil service of the state or of any

civil division thereof shall be removable therefrom for

the utterance of any treasonable or seditious word or

words or the doing of any treasonable or seditious act

or acts while holding such position. For the purpose

of this subdivision, a treasonable word or act shall

mean ‘treason’, as defined in the penal law; a seditious

word or act shall mean ‘criminal anarchy’ as defined

in the penal law.’’

Section 3021, New Tonk Epucation Law, is captioned,

„Removal of superintendents, teachers, and employees for

treasonable or seditious acts or utterances,’’ and provides:

„A person employed as pa Fag of schools,

teacher or employee in the public schools, in any city

or school district. of the state, shall be removed from

such position for the utterance of any treasonable or

seditious word or words or the doing of any treason-

able or seditious act or acts while holding such posi-

tion.

Szorion 3022, New Yorx Epvcation Law, is captioned,

‘*Elimination of subversive persons from the public school

system,’’ and provides:

1. The board of regents shall adopt, promulgate,

and enforce rules and regulations for * —

tion or removal of superintendents of schools, teachers

or employees in the public schools in any city or school

district of the state and the faculty members and all

other personnel and employees of any college or other

institution of higher education o and operated by

the state or any subdivision thereof who violate the

provisions of section three thousand twenty-one of this

article or who are ineligible for appointment to or

retention in any office or position in such public schools

or such institutions of higher education on any of the

unds set forth in section twelve-a of the civil serv-

ice law and shall provide therein appropriate methods

and procedure for the enforcement of such sections of

this article and the civil service law.

2. The board of regents shall, after inquiry, and

after such notice and hearing as may be W hay og

make a listing of organizations which it finds to be

subversive in that they advocate, teach or embrace the

doctrine that the government of the United States or

of e or of any political subdivision thereof

shall be overthrown or overturned by force, violence

or any unlawful means, or that they advocate, advise,

teach or embrace the duty, necessity so ah abet of

adopting oe 4 such doctrine, as set fo in section

twe of the civil service law. Such listings may be

amended and revised from time to time. board,

in making such inquiry, may utilize any similar listings

or designations promulgated by any federal agency or

authority authorized by federal law, regulation or exe-

cutive order, and for the purposes of such inquiry, the

board may request and receive from such federal

agencies or authorities any supporting material or evi-

dence that may be made available to it. The board of

5 shall provide in the rules and regulations re-

; by subdiyision one hereof that membership in

any such o ization included in such listing made by

it shall constitute prima facie evidence of disqualifica-

tion for appointment to or retention in any office or

position in the public schools of the state.

3. The board of 7 shall annually, on or be-

fore the fifteenth day of February, by separate report,

render to the legislature, a full statement of measures

taken by it for the enforcement of such provisions of

law and to require compliance therewith. Such reports

shall contain a description of surveys made by the

board of regents, from time to time, as may be appro-

priate, to ascertain the extent to which such provisions

of law have been enforced in the city and school dis-

tricts of the state.’’ **

Agticte XVIII, Szction 244, Ruls oF THE Boarp or

Recents (Adopted July 15, 1949), is captioned, ‘‘Subver-

sive Activities“, and provides: :

1. The school authorities of each school district

shall take all necessary action to put into effect the

following procedures for disqualification or removal of

superintendents, teachers or other employes who vio-

late the provisions of section 3021 of the Education

Law or section 12-a* of the Civil Service Law.

a. Prior to the ene of gt Bee rintendent,

teacher or employe, the nominating o ial, in addition

to making due inquiry as to the candidate’s academic

record, professional training, experience and personal

qualities, shall inquire of prior employers, and such

other persons as may be in a position to — perti-

nent information, as to whether the candi is known

to have violated the aforesaid statutory provisions,

including the provisions with respect to membership

in organizations listed by the Board of Regents as

subversive in accordance with paragraph 2 hereof. No

person who is found to have violated the said statutory

provisions shall be eligible for employment.

b. The school authorities shall require one or more

of the officials in their employ, whom they shall desig-

nate for such purpose, to submit to them in writing not

later than October 31, 1949, and not later than Sep-

* Now section 105.

tember 30th of each school year thereafter, a report

on each teacher or other employe. Such report shall

either (1) state that there is no evidence indicating

that such teacher or other employe has violated the

statutory provisions herein referred to, including the

provisions with respect to membership in organiza-

tions listed by the Regents as subversive in accordance

with ph 2 hereof; or (2) where there is evi-

dence indicating a violation of said statutory provi-

sions, including membership in such a subversive or-

ganization, recommend that action be taken to dismiss

such teacher or other employe, on the ground of a

specified violation or violations of the law.

e. The school authorities shall themselves prepare

‘such So rege the superintendent of schools and such

other officials as may be directly responsible to them,

including the officials designated by them in accordance

with subdivision b of this paragraph.

d. .The school authorities shall proceed as promptly

as possible, and in any event within 90 days after the

submission of the recommendations required in sub-

division b of this paragraph, either to prefer formal

charges against T emi teachers or other em-

ployes for whom the‘€vidence justifies such action, or

to reject the recommendations for such action.

e. Following the determination required in subdivi-

sion d of this paragraph, the school authorities shall

dee won institute p ings for the dismissal of

superintendents, teachers or o employes in those

- eases in which in their judgment the evidence indicates

violation of the statutory provisions herein referred

to. In proceedings against persons serving on proba-

tion or those having tenure, the appropriate statuto

| ure for dismissal shall be followed. In p ;

ings against persons serving under contract and not

under the provisions of a tenure law, the school au-

thorities shall conduct such hearings on charges as

they deem the on ae warrant, before taking final

action on dismissal. In all cases all rights to a fair

trial, representation by counsel and appeal or court

review as provided by statute or the Constitution shall

be scrupulously observed.

Now section 105

2. Pursuant. to chapter 360 of the Laws of 1949, the

Board of Regents will issue a list, which may be

amended and revised from time to time, of i

tions which the Board finds to be subversive in that

they advocate, advise, teach or embrace the doctrine

that the Government of the United: States, or of any

state or of any political subdivision thereof, shall be

overthrown or overturned by force, violence or an

unlawful means, or that they advocate, advise, Noah

or embrace the duty, necessity or propriety of adopt-

ing any such doctrine, as set forth in section 12-a* of

the Civil Service Law. Evidence of membership in

any organization so listed on or after the tenth da

subsequent to the date of official promulgation of suc

list shall constitute prima facie evidence of disqualifi-

cation for appointment to or retention of any or

position in the school system. Evidence of member-

ship in such an organization prior to said day shall be

presumptive evidence that membership has continued,

in the absence of a showing that such membership has

been terminated in good faith. c

3. On or before the first day of December of each

year, the school authorities of each school district shall

render to the Commissioner of Education a full report,

officially adopted by the school authorities and signed

by their presiding officer, of the measures taken by

them for the enforcement of these regulations during

the calendar year ending on the 3ist day of October

preceding. Such report shall include a statement as

to (a) the total number of superintendents, teachers

and other employes in the employ of the school dis-

trict; (b) the number of superintendents, teachers and

other employes as to whom the school authorities

and/or the officials designated by them have reported

that there is no evidence indicating that such employes

have violated the statutory provisions herein referred

to, including the provisions with respect to member-

ship in organizations listed ‘by the Regents as subver-

sive; and (c) the number of superintendents, teachers

and other employes in whose cases the school authori-

ties and/or the officials designated by them have rec-

ommended that action be taken to dismiss the employes

—

c —

in question, on the grounds of specified violations of

’ \thé law or evidence of membership in a ‘subversive

organization. Such report shall . inelude, for the

group listed under (o) above, a statement of (d) the

number of cases in which have been or are to

be preferred and the status or final disposition of each

gi es eases (e) the number of cases in which the

school authorities have concluded that the evidence re-

ported by the designated officials does not warrant the

preferring of charges; and (f) the number of cases in

which the school authorities have not determined, as

of October 31st of the school year in question, on the

action to be taken. |

4. Immediately upon the finding by school authori-

ties that any person is disqualified for appointment or

retention in employment under these regulations, said

school authorities shall report to the Commissioner of

* — sk name of such person and the evidence

! supporting tion, including a transcript

— records of hearings on charges, if any,

which have been conducted. 5

Sections 160 and 161% of the New Tonk Pu Law pro-

vides:

„ Sroriox 160. Criminal n defined.

Oriminal anarchy is the doctrine that organized gov-

ernment should be overthrown by force or violence, or

by assassination of the executive head or of any of the

executive officials of government, or by any unlawful

means. The advocacy of such doctrine either by word

of mouth or writing is a felony.“

„ Srorrox 161. Advocacy of criminal n.

Any person who:

„e Ba By word of mouth or writing advocates, advises

or teaches the duty, necessity or propriety of over«

‘throwing or overturning organized government by

force or violence, or by assassination of the executive

head or of any of the executive officials a

or by any unlawful means; or,

Dosw FR Pate, —— edits, issues or ix cir-

aoulates, sells, distributes or publicly displays any book,

aper, document or written or printed matter in any

orm, containing or advocating, advising or teachi

the doctrine that organized government should be over-

thrown by force, violence or any unlawful means; or

3. nly, wilfully and deliberately justifies by

word of mouth or writing the assassination or unlaw-

‘ful killing or assaulting of any executive or other offi-

cer of the United States or of any state or for any

civilized nation having an organized me meen be-

cause of his official character, or any other crime, with-

out intent to teach, spread or advocate the propriety

of the doctrines of criminal anarchy; or

4. Organizes or helps to organize or becomes a

member of or voluntarily assembles with any society,

group or assembly of persons formed to teach or ad-

vocate such a doctrine

Is guilty of a felony and punishable by imprison-

ment for not more than ten years, or by a fine of not

more than five thousand dollars, or both.“

Feinberg Certificates

Sitting by designation.

1. Strate University or New York at BurraLo

‘* CERTIFICATE

„Anyone who is a member of the Communist Party

or of any organization that advocates the violent over-

throw of the Government of the United States or of

the State of New York or any political subdivision

thereof cannot be employed by the State University.

Anyone who was previously a member of the Com-

munist Party or of any organization that advocates the

N 8 mae 1 2 * 1

violent overthrow of the Government of the United

States or of the State of New York or any political

subdivision thereof i is directed to confer with the Presi-

dent before signing this certificate.

“This ! is to to rag, that I have read the e

of the Universi the State of New Tork, 1959, en-

titled Regents Rule on Subversive Activities’ together

with the instructions set forth above and understand

that these rules and regulations as well as the laws

cited therein are part of the terms of my employment.

I further certify that I am not now a member of the

Communist Party and that if I have ever been a mem-

ber of the Communist Party I have communicated that

3 the President of the State University of New

B. ‘*CERTIFicaTE

„Anyone who is a member of the Communist Party

or of any organization that advocates the violent over-

throw of the Government of the United States or of

the State of New York or any political subdivision

thereof can not be employed by the State University.

** Anyone who 3 previously a member of the Com-

munist Party or of any organization that advocates the

violent overthrow of the Government of the United

States or of the State of New York or any political

subdivision thereof is directed to confer with the Presi-

dent before signing this certificate.

This is to certif: that I have read the publication

of the University of the State of New York, 1959, en-

titled Regents Rules on Subversive Aotivities to-

with the instructions set forth above and 3

stand that these rules and ions as presented to

me, as well as the laws cited therein, except for the

Education Commissioner’s memorandum are part of

the terms of my employment. I further certify that I

am not now a member of the Communist Party of the

eee amma aaa

State of New York or of the United States, and that —

I have ever heen a member of the Communist Pa:

the State of New York or of the United States, I Lues

communicated that fact to the President of the State

University of New Tork.

N. ol Date ected Signature”

Resolutions of the Board of Trustees of the

State University of New York

EXHIBIT

ee that Resolution 65-100 adopted May 13, 1965, be

and the same hereby is, amended to read as follows:

Resolved that Resolution No. 56-98 adopted on Octo-

ber 11, 1956, incorporated into the Policies of the

Board of Trustees as Section 3 of Title B of Article

XI thereof, and the Procedure on New Academic Ap-

pointments therein referred to, be, and the same here-

by are, Rescinded, and

Further Resolved that Title B of Article XI of the

Policies of the Board of Trustees be amended by add-

ing a new Section 3 thereto to read as follows:

83. Pross dune for appointments.

Before any initial appointment shall hereafter be 2

to any position certified to be in the professional serv-

ice of the University pursuant to Section 35 of the

Civil Service Law the officer authorized to make such

appointment or to make the initial recommendation

therefor shall send or give to the prospective appointee

a statement prepared by the President concisely ex-

plaining the disqualification imposed by Section 105 of

the Civil Service Law and by Section 3022 of the Edu-

dation Law and the Rules of the Board of Regents

thereunder, including the presumption of such dis-

qualification by reason of membership in organizations

listed by the Board of Regents. Such officer, in addi-

tion to due inquiry as to the candidate’s record, pro-

fessional training, experience and personal qualities,

shall make or cause to be made such further inquiry as

may be needed to satisfy him as to whether or not such

candidate is disqualified under the provisions of such

statute and rules. Should any question arise in the

course of such inquiry such candidate may request or

such officer may require a personal interview. Refusal

of a candidate to answer any question

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