# Jurisdictional StatementO — Keyishian v. Board of Regents of Univ. of State of NY > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0065%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional StatementO - **Published:** January 1, 1966 - **Citation:** 385 U.S. 589 ## Text * — 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 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 — — 30 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 31 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 32 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 33 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 34 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. | / 35 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 17 * 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 a 36 — 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 I 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 37 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- 4 kgf a — 38 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 39 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- 40 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- 41 — 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 43 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- 44 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 45 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. 47 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, V 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. 4. ww . C. J., Burxe, Ch. J. and HAN DRR- J. Before: Moonx, LU. 8 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 49 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 . . — 50 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 ; 4 are 1 5 5. 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 0 i il il f 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) | 1 51 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 52 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 53 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 54 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 55 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. 56 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. — — ' 57 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- 58 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 59 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). a 4} 4 i ! ‘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, 61 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 62 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- * = 63 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 64 309.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- 66 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 67 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 68 ‘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 FF 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 70 “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 F 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. 1 71 ‘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. ** 2 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. * 72 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 73 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. 74 UNITED STATES COURT OF APPEALS. 4. “ HARRY KEYISHIAN, GEORGE HOCHFIELD, NEW- TON GARVER, RALPH N. MAUD and GEORGE E. STARBUCK, Appellants, v. 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. 75 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) i : : 4 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 ww 77 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 : 3 : x 2 78 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 79 _» 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 * 80 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 (c) o izes or helps to organize or become a 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 ; , \ 81 ‘*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- 83 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. * Ps 84 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 85 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 — 86 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, 87 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 A. 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 5 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 0 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 89 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 relevant to such. inquiry by such officer shall be sufficient ground to re- fuse to make or recommend appointment. An appoint- ment or recommendation for appointment shall con- stitute a certification by the appointing or recommend- ing officer that due inquiry has been made and that he finds no reason to believe that the candidate is e ified for the appointment. Further Resolved that this resolution shall become effec- tive July 1, 1965, provided, however, that this resolution shall become effective immediately with respect to appoint- ments made or recommended prior to July 1, 1965 to take effect on or after that date. = ————————— — — — aaaccaaacaaaaaaas 91 Laws of 1958, Chapter 503 Section 1. Declaration of legislative intent. The legis- lature takes cognizance that section three thousand twenty- two of the education law makes provision for the imple- mentation and enforcement of section twelve-a of the civil service law with respect to the elimination of subversive persons from the public school system; that such section three thousand twenty-two authorizes the board of regents, after notice and hearing, to list ‘‘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 any political subdivision there- of shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law’’; that the board of regents, after notice and hearing, has so listed the communist party of the United States of America and the communist party of the State of New York; and that pursuant to such section three thousand twenty-two and rules and regulations adopted thereunder membership in either such organization consti- tutes prima facie evidence of disqualification for appoint- ment to or retention in any office or position in the public schools of the state. It is the intent of the legislature to apply to all officers and employees subject to section twelve- a of the civil service law the same provision that member- ship in either of such organizations shall constitute prima facie evidence of disqualification for appointment of con- tinued employment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0065%3A02. Public record. Not legal advice.