xt7msb3wtd0h_58 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Adler v. Board of Education of the City of New York - no. 8 text Adler v. Board of Education of the City of New York - no. 8 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_222/Folder_6/Multipage7531.pdf 1951 1951 1951 section false xt7msb3wtd0h_58 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES

No. S.—~OCTOBER TERM, 1051.

Irving Adler, George Friedlander.
Mark Friedlander,etal..Appcl— On Appeal From the
lauts, ' Court of Appeals of
7/5 the State, of New
The Board of Education of the, York.
City of New York.

[March —. 19.32.]

Mu. Jifs'ricr; BLACK, dissenting.

This is another of those rapidly multiplying legislative
enactments which make it dangerous—this time for school
teachers—to think or say anything except what a tran—
sient majority happen to approve at the moment. Bas—
ically these laws rest on the belief that government should
supervise and limit the flow of ideas into the minds of
men. The tendency of such governmental policy is to
mould people into a common intellectual pattern. Quite
a different governmental policy rests on the belief that
government should leave the mind and spirit of man ab—
solutely free. Such a governmental policy encourages
many and varied intellectual outlooks in the belief that
the best views will prevail. This policy of freedom is
in my judgment embodied in the First Amendment and
made applicable to the states by the Fourteenth. Be-
cause of this policy public officials cannot be constitu—
tionally vested with powers to select the ideas people
can think about. censor the public views they can express,
or choose the persons or groups people can associate with.
Public officials with such powers are not public servants;
they are public masters.

I dissent from the Court's judgment sustaining this law
the effect of which is to penalize school teachers for their
thoughts and their associates.

 

 January 29. 1952

almond” ‘.--; ”7245.:

Dear Shay:
Re: No. 8 - Adler. at al. v.l _
The Bd. of Ed. at the City of NY

IngreeF‘ine job”: "

C. J.

Mr. Justice Minton

 

 /”’ . . saw

710: The Chief Justice
Mr. Justice Black
Mr. Justice Reed
Mr. Justice Frankfu’
Mr. Justice Douglas
Mr. Justice Jnr‘son
Mr. Justice Burton
Mr. Jilstice Clank

SUPREME COURT OF THE UNITED STAT—ES. _______________

_ From: Hinton, J.
No. 8.—OCTOBER TERM, 1901.

JAN 26 1952

Circulated:
Irving Adler, George Fried-

lander, Mark Friedlander, et Recirculated:
Appeal From the Court
al., Appellants,

v of Appeals of the State

. of New York.
The Board of Education of the
City of New York.

[January —, 1952.]

MR. JUSTICE MINTON delivered the opinion of the
Court.

Appellants brought a declaratory judgment action in
the Supreme Court of New York, Kings County, praying
that § 12—a of the Civil Service Law,1 as implemented by
the so-called Feinberg Law,2 be declared unconstitutional,
and that action by the Board of Education of the City of
New York thereunder be enjoined. On motion for judg-
ment on the pleadings, the court held that subdivision (0)
of § 12—a, the Feinberg Law, and the Rules of the State
Board of Regents promulgated thereunder violated the
Due Process Clause of the Fourteenth Amendment, and
issued an injunction. 196 Misc. 873. The Appellate
Division of the Supreme Court reversed, 276 App. Div.
527. and the Court of Appeals affirmed the judgment of
the Appellate Division, 301 N. Y. 476. The appellants
come here by appeal under 28 U. S. C. § 1257.

Section 12-a of the Civil Service Law, hereafter referred
to as § 12—a, is set forth in the margin.3 To implement

1 N. Y. Laws 1939, c. 547, as amended N. Y. Laws 1940, c. 564.

2N. Y. Laws 1949, c. 360.

3 “§ 1‘2~a. Ineligibilily. No person shall be appointed to any of-
fice or position in the service of the state or of any civil division or
city thereof, nor shall any person presently employed in any such

 

 8
2 ADLER 2). BOARD OF EDUCATION.

this law, the Feinberg Law was passed, adding a new
section, § 3022, to the Education Law of the State of New
York. which section here pertinent is set forth in the
margin.“ The F einberg Law was also to implement

office or position be continued in such employment, nor shall any
person be employed in the public service as superintendents, prin—
cipals or teachers in a, public school or academy or in a state normal
school or college, or any other state educational institution who: (a)
By word of mouth or writing wilfully and deliberately 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 0r overturned by force, violence or any unlawful
means; or

“(h) Prints, publishes, edits, issues or sells, any book, paper, docu—
ment or written or printed matter in any form containing or advocat-
ing, advising or teaching 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 adopting the doctrine contained therein;

“(c) Organizes or helps to organize or becomes a member of any
society or group of persons which teaches or advocates that the gov—
ernment of the United States or of any state or of any political sub—
division thereof shall be overthrown by force or violence, or by
any unlawful means;

“((l) A person dismissed or declared ineligible may within four
months of such dismissal or declaration of ineligibility be entitled to
petition for an order to show cause signed by a justice of the supreme
court, why a hearing on such charges should not be had. Until the
filial judgment on said hearing is entered, the order to show cause
shall stay the effect of any order of dismissal or ineligibility based
on the provisions of this section. The hearing shall consist of the
taking of testimony in open court with opportunity for cross—exami—
nation. The burden of sustaining the validity of the order of dis-
missal or ineligibility by a fair preponderance of the credible evi—
dence shall be upon the person making such dismissal or order of
ineligibility.”

‘1 § 3022. Elimination of subversive persons from the public school
system,

“1. The board of regents shall adopt, promulgate, and enforce rules
and regulations for the disqualification or removal of superintendents

 

 8

ADLER v. BOARD OF EDUCATION. 3

§ 3021 of the Education Law of New York.” The consti-
tutionality of this section was not attacked in the pro-
ceedings below.

The preamble of the F einberg Law, § 1, makes elaborate
findings that members of subversive groups. particularly
of the Communist Party and its affiliated organizations,

of schools, teachers or employees in the public schools in any city or
school district of the state who violate the provisions of section three
thousand twenty—one of this article or who are ineligible for appoint—
ment to or retention in any office or position in such public schools on
any of the grounds set forth in section twelve—a of the civil service
law and shall provide thcrcin 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 Inay 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 any political subdivision thereof shall be ovcr-
thrown 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. Such listings may be amended and
revised from time to time. The 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 executive
order, and for the purposes of such inquiry, the board may request
and receive from such federal agencies or authorities any supporting
material or evidence that may be made available to it. The board of
regents shall provide in the rules and regulations required by subdivi-
sion one hereof that membership in any such organization included
in such listing made by it shall constitute prima facie evidence of
dismialilieation for appointn'ient to or retention in any ofliee or position
in the public schools of the state.”

§ 3021. Removal of supcrintcndcnts, teachers and employees for
trcasrmublc or seditious acts or utterances

“A person employed as superintendent of schools, teacher or em-
ployee 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 treasonable
or seditious act or acts while holding such position.”

 

 8
4 ADLER 1). BOARD OF EDUCATION.

have been infiltrating into public employment in the pub—
lic schools of the State; that this has occurred and con-
tinues notwithstanding the existence of protective stat-
utes designed to prevent the appointment to or retention
in employment in public office, and particularly in the
public schools, of members of any organizations which
teach or advocate that the government of the United
States or of any state or political subdivision thereof
shall be overthrown by force or Violence or by any other
unlawful means. As a result, propaganda can be dis-
seminated among the children by those who teach them
and to whom they look for guidance, authority, and
leadership. The Legislature further found that the
members of such groups use their positions to advocate
and teach their doctrines, and are frequently bound by
oath, agreement, pledge, or understanding to follow, ad—
vocate and teach a prescribed party line or group dogma
or doctrine without regard to truth or free inquiry. This
propaganda, the Legislature declared, is sufficiently subtle
to escape detection in the classroom; thus, the menace
of such infiltration into the classroom is difficult to meas-
ure. Finally. to protect the children from such influence,
it was thought essential that the laws prohibiting mem-
bers of such groups, such as the Communist Party or its
affiliated organizations, from obtaining or retaining em—
ployment in the public schools be rigorously enforced. It
is the purpose of the Feinberg Law to provide for the
disqualification and removal of superintendents of
schools, teachers, and employees in the public schools in
any city or school district of the State who advocate the
overthrow of the Government by unlawful means or who
are members of organizations which have a like purpose.

Section 3022 of the Education Law, added by the Fein-
berg Law, provides that the Board of Regents, which
has charge of the public school system in the State of
New York, shall. after full notice and hearing, make a
listing of organizations which it finds advocate, advise,

 

 8
ADLER 1). BOARD OF EDUCATION. 5

teach, or embrace the doctrine that the government
should be overthrown by force or Violence or any other
unlawful means, and that such listing may be amended
and revised from time to time.

It will be observed that the listings are made only after
full notice and hearing‘ and—theright of administrative
review afforded the organizations under inquiry. In ad-
dition, the Court of Appeals construed the statute in
conjunction with Article 78 of the New York Civil Prac—
tice Act, Gilbert—Bliss’ N. Y. Civ. Prac., Vol. 6B, so as
to provide listed organizations a right of review.

The Board of Regents is further authorized to provide-
in rules and regulations, and has so provided, that mem-
bership in any listed organization, after notice and hear—
ing, “shall constitute prima facie evidence for disquali-
fication for appointment to or retention in any office or
position in the school system”; 6 but before one who is

6“Section 254. Disqualification or removal of superintendents,
teachers and other employcs.

“2. List of subversive organizations to be issued. 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
organizations which the Board finds to be subversive in that they
advocate, advise, teach or embrace the doctrine that the Govern-
ment of the United States, or of any state or of any political sub-
division thereof, shall be overthrown or overturned by force, violence
or any unlawful means, or that they advocate, advise, teach or em—
brace the duty, necessity 01' propriety of adopting 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 day
subsequent to the date of official promulgation of such list shall
constitute prima facie evidence of disqualification for appointment to
or retention of any office or position in the school system. Evidence
of membership in such an organization prior to said day shall be
presumptive evidence that membership has continued, in the absence
of a showingr that such membership has been terminated in good faith.”
Otticial Compilation of Codes, .lules and Regulations of the State of
New York, (Fifth Supp), Vol. 1, p. 206.

 

 8

6 ADLER 1). BOARD OF EDUCATION.

an employee or seeks employment is severed from or
denied employment, he likewise must be given a full
hearing with the privilege of being represented by counsel
and the right to judicial review.T It is § 12—a of the Civil
Service Law, as implemented by the F einberg Law as
above indicated, that is under attack here.

It is first argued that the F einberg Law and the rules
promulgated thereunder constitute an abridginent of
speech and assembly of persons employed or seeking em—
ployment in the public schools of the State of New York.

It is clear that such persons have the right under our
law to assemble, speak, think and believe as they will.
Communications Assn. v. Douds, 339 U. S. 382. It is
equally clear that they have no right to work for the
State in the school system on their own terms. United
Public ll’orlrers v. ill'itchell, 330 U. S. 75. They may
work for the school system upon the reasonable terms
laid down by the proper authorities of New York. If
they do not choose to work on such terms, they are at
liberty to retain their beliefs and associations and go
elsewhere. Has the State thus deprived them of any
right to free speech or assembly? We think not. Such
persons are or may be denied. under the statutes in ques—
tion, the privilege of working for the school system of
the State of New York because first, of their advocacy
of the overthrow of the government by force or violence,
or secondly, by unexplained membership in an organiza-
tion found by the school authorities, after notice and
hearing, to teach and advocate the overthrow of the gov-

7The Court of Appeals construed the statute in conjunction with
§l2~u subd. [d], supra, n. 3. The Rules of the Board of Regents
provided: “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.” Section 254 1(0),
Ollieial Compilation of Codes, Rules and Regulations of the State
of New York, (Fifth Supp), Vol. 1, p. 206.

 

 8
ADLER 1). BOARD OF EDUCATION. 7

ernment by force or violence, and known by such persons
to have such purpose.

The constitutionality of the first proposition is not
questioned here. G’itlow v. New York, 268 U. S. 652,
667—672, in construing § 161 of the New York Penal Law.

As to the second, it is rather subtly suggested that we
should not follow our recent decision in Garner v. L08
Ange/[es Board, 341 U. S. 716. We there said:

“We think that a municipal employer is not dis—
abled because it is an agency of the State from in—
quiring of its employees as to matters that may prove
relevant to their fitness and suitability for the pub-
lic service. Past conduct may well relate to present
fitness; past loyalty may have a reasonable relation—
ship to present and future trust. Both are com—
monly inquired into in determining fitness for both

high and low positions in private industry and are
not less relevant in public employment.” 341 U. S.
at p. 720.

We adhere to that case. A teacher works in a sensitive
area in a schoolroom. There he shapes the attitude of
young minds towards the society in which they live. In
this, the state has a vital concern. It must preserve the
integrity of the schools. That the school authorities
have the right and the duty to screen the ofiicials, teach-
ers, and employees as to their fitness to maintain the
integrity of the schools as a part of ordered society, can—
not be doubted. One’s associates, past and present, as
well as one’s conduct, may properly be considered in de-
termining fitness and loyalty. From time immemorial,
one’s reputation has been determined in part by the com-
pany he keeps. In the employment of officials and
teachers of the school system, the state may very prop—
erly inquire into the company they keep, and we know
of no rule, constitutional or otherwise, that prevents the

 

 8
8 ADLER 7}. BOARD OF EDUCATION.

state, when determining the fitness and loyalty of such
persons, from considering the organizations and persons
with whom they associate.

If, under the procedure set up in the New York law,
a person is found to be unfit and is disqualified from
employment in the public school system because of mem—
bership in a listed organization, he is not thereby denied
the right of free speech and assembly. His freedom of
choice between membership in the organization and em-
ployment in the school system might be limited, but not
his freedom of speech or assembly, except in the remote
sense that the limitation is inherent in every choice. Cer-
tainly such limitation is not one the state may not make
in the exercise of its police power to protect the schools
from pollution and thereby to defend its own existence.

It is next argued by appellants that the provision in
§ 3022 directing the Board of Regents to provide in rules
and regulations that membership in any organization
listed by the Board after notice and hearing, with pro-
vision for review in accordance with the statute, shall
constitute prima facie evidence of disqualification, denies
due process, because the fact found bears no relation to
the fact presumed. In other words, from the fact found
that the organization was one that advocated the over—
throw of government by unlawful means and that the
person employed or to be employed was a member of the
organization and knew of its purpose,S to presume that
such member is disqualified for employment is so unrea-
sonable as to be a denial of due process of law. We do-
not agree.

“The law of evidence is full of presumptions either
of fact or law. The former are, of course, disputable,

S In the proceedings below, both the Appellate Division of the Su—
preme Court and the Court of Appeals construed the statute to re-
quire sueh knowledge. 276 App. Div. 527, 530; 301 N. Y. 476, 494.

 

 8
ADLER 1;. BOARD OF EDUCATION. 9

and the strength of any inference of one fact from
proof of another depends upon the generality of the
experience upon which it is founded. . . .

“Legislation providing that proof of one fact shall
constitute prima facie evidence of the main fact in
issue is but to enact a rule of evidence, and quite
within the general power of government. Statutes,
National and state, dealing with such methods of
proof in both civil and criminal cases abound, and
the decisions upholding them are numerous.” i110—
bile, J. &‘ K. C. R. Co. v. Turnipseed, 219 U. S. 35 at
p. 42.

Membership in a listed organization found to be within
the statute and known by the member to be within the
statute is a legislative finding that the member by his
membership supports the thing the organization stands
for, namely, the overthrow of government by unlawful
means. We cannot say that such a finding is contrary
to fact or that “generality of experience” points to a dif-
ferent conclusion. Disqualification follows therefore as
a reasonable presumption from such membership and sup-
port. Nor is there here a problem of procedural due
process. The presumption is not conclusive but arises
only in a hearing where the person against whom it may
arise has full opportunity to rebut it. The holding of the
Court of Appeals below is significant in this regard:

“The statute also makes it clear that . . . proof of
such. membership ‘shall constitute prima facie eVi--
dence of disqualification’ for such employment. But,
as was said in Potts v. Pardee (220 N. Y. 431, 433):
‘The presumption growing out of a prima facie
case . . . remains only so long as there is no sub-
stantial evidence to the contrary. When that is of-
fered the presumption disappears, and unless met by
further proof there is nothing to justify a finding
based solely upon it.’ Thus the phrase ‘prima facie-

 

 8

10 ADLER 2). BOARD OF EDUCATION.

evidence of disqualification,’ as used in the statute,
imports a hearing at which one who seeks appoint—
ment to or retention in a public school position shall
be afforded an opportunity to present substantial
evidence contrary to the presumption sanctioned by
the prima facic evidence for which subdivision 2 of
section 3022 makes provision. Once such contrary
evidence has been received, however, the official who
made the order of ineligibility has thereafter the bur—
den of sustaining the validity of that order by a fair,
preponderance of the evidence. (Civil Serilvce Law,
§ 12—a. subd. i[cl].). Should an order of ineligibility
then issue, the party aggrieved thereby may avail
himself of the provisions for review prescribed by
the section of the statute last cited above. In that
view there here arises no question of procedural due
process.” 301 N. Y. 476, at p» 494.

Where, as here, the relation between the fact found and
the presumption is clear and direct and is not conclusive,
the requirements of due process are satisfied.

Without raising in the complaint or in the proceedings
in the lower courts the question of the constitutionality
of § 3021 of the Education Law of New York, appellants
urge here for the first time that this section is uncon-
stitutionally vague. The question is not before us. We
will not pass upon the constitutionality of a state statute
before the state courts have had an opportunity to do so.
Asbury Hospital v. Cass County, 326 U. S. 207, 213—216;
Alabama. State Federation of Labor V. IlIcAdory, 325 U. S.
450, 460—462; Plymouth Coal Co. v. Pennsylvania, 232
U. S. 531, 546.

It is also suggested that the use of the word “subver—
sive” is vague and indefinite. But the word is first used
in § 1 of the F einberg Law, which is the preamble to the
Act, and not in a definitive part thereof. When used in

 

 8
ADLER 1). BOARD OF EDUCATION. 11

subdivision 2 of § 3022, the word has a very definite mean-
ing, namely, an organization that teaches and advocates
the overthrow of government by force or violence.

We find no constitutional infirmity in § 12—3. of the Civil
Service Law of New York or in the Feinberg Law which
implemented it, and the judgment is

A firmed.

 

 SUPREME COURT OF THE UNITED STATES

No. 8.—OcroBi-:n TERM, 1951.

Irving -\dler. George Friedlander.
Mark I’riedlander, eta ., Appel— On Appeal From the
lants, Court of Appeals of
v. the State of New
The Board of Education of the York.
City of New York.

[March —, 10-32.]

Mn. thsrrcr. DOUGLAs, dissenting.

I haye not been able to accept the recent doctrine that
a citizen who enters the public service can be forced to
sacrifice his civil rights?“ I cannot for example find in our
constitutional scheme the power of a state to place its
employees in the category of second class citizens by de—
nying them freedom of thought and expression. The
Constitution guarantees freedom of thought and expres—
sion to everyone in our society. All are entitled to it; and
none needs it more than the teacher.

The public school is in most respects the cradle of our
democracy. The increasing role of the public school is
seized upon by proponents of the type of legislation rep-
resented by New York's Feinberg law as proof of the
importance and need for keeping the school free of “sub—
versive influences." But that is to miseonceive the effect
of this type of legislation. Indeed the impact of this kind
of censorship on the public school system illustrates the
high purpose of the First Amendment in freeing speech
and thought from censorship.

of Public ll’or/ns of LUS glut/Mfr Jill l'. S. Tl i.

 

 S—DlSSENT
ADLER 1'. BOARD OF EDUCATION.

The function of the teacher is to explore to the edges
of problems. to push inquiry to the horizon, to search for
truth unfettered by dogma. It may be that a Communist
who is teaching in some fields would be unable to meet.
this high standard. It may be that her iinloctrination in
the conspiratorial role of the (‘omintern would 'ause her
to pervert some subjects. In that ease I think it clear
that she could be discharged or disciplined for failing to
meet appropriate professional standards.

But the present law does not employ that test nor does
it condemn on the basis of disloyal acts. Rather. it pro—
ceeds on a principle repugnant to our society guilt by
association. A teacher is disipialified because of her mem—
bership in an organization found to be “subversive."
The finding as to the “sul:>versive" character of the organ—
ization is made in a proceeding to which the teacher is not
a party and in which it is not clear that she may even be
heard. To be sure she may have a hearing when charges
of disloyalty are leveled against her. But in that hear—
ing the finding as to the “subversive" character of the
organization apparently may not be, reopened in order to
allow her to show the truth of the matter. The irrebut—
table charge that the organization is “subversive" there-
fore hangs as an ominous cloud over her own hearing.
The mere fact of membership in the organization raises
a prima facie 'ase of her own guilt. She may, it is said,
show her innocence. But innocence in this case turns on
knowledge: and when the witch hunt is on. one who must
rely on ignorance leans on a feeble reed.

The very threat of such a procedure is certain to raise
havoc with academic freedom. Youthful indiscretions.
mistaken causes. misguided entluisiasms—all long forgot—
ten—become the ghosts of a harrowing present. Any
organization committed to a liberal cause, any group or—
ganized to revolt against an hysterical trend. any com-
mittee launched to sponsor an unpopular program be—

 

 8—DTSSENT
ADLER t‘. BOARD OF EDI‘C‘ATIOI‘C. 3

comes suspect. These are the organizations into which
Communists often infiltrate. Their presence infects the
whole. even though the project was not conceived in sin.
A teacher caught in that mesh is almost certain to stand
condemned Fiaring condemnation. she will tend to
shrink from any association that stirs controyersy. In
that manner freedom of expression will be stifled.

But that is only part of it. Once a teachers connection
with a listed organization is shown, her views become
subject to scrutiny to determine whether her member-
ship in the organization is innocent or. if she was formerly
a member, whether she has boua fidc abandoned her
membership.

The law ineyitably turns the school system into a spy—
ing project. Regular loyalty reports on the teachers must
be made out. The principals become detectiyes; the
students. the parents. the community become informers.
Ears are cocked for tell—tale signs of disloyalty. The
prejudices of the community come into play in searching
out the disloyal.’ This is not the usual type of supervision
which chec {s a teachers competency; it is a system which
searches for hidden meanings in a teacher's utterances.

“hat was the significance of the reference of the art
teacher to socialism? Why was the history teacher so
openly hostile to Franco Spain? “he heard overtones of
revolution in the English teachers discussion of the
Grapes of Wrath? What was behind the praise of Soviet
progress in metallurgy in the chemistry class? “'as it
not “subversive" for the teacher to cast doubt on the
wisdom of the venture in Korea?

What happens under this law is typical of what hap-
pens in a police state. Teachers are under constant sur—
veillance; their pasts are combed for signs of disloyalty;
their utterances are watched for clues to dangerous
thoughts. A pal] is cast over the classrooms. There can
be no real academic freedom in that enyironment. Where

 

 S—DISSENT
4 ADLER 1!. BOARD OF EDUCATION.

suspicion fills the air and holds scholars in line for fear
of their jobs, there can be no exercise of the free intellect.
Supineness and dogmatism take the place of inquiry. A
“party line" as dangerous as the “party line" of the
Communists#lays hold. It is the “party line" of the
orthodox view, of the conventional thought. of the ac-
cepted approach. A problem can no longer be pursued
with impunity to its edges. Fear stalks the classroom.
The teacher is no longer a stimulant to adventurous think—
ing; she leeomes inst ‘ad a pipe line for safe and sound
information. A deadening dogma takes the place of free
inquiry. Instruction tends to become sterile; pursuit of
knowledge is discouraged; discussion often leaves off
where it should begin.

This. I think. is what happens when a censor looks
over a. teacher's shoulder for a Communist. a Fascist. or
for any other unpopular person. This system of spying
and surveillance with its accompanying reports and
trials cannot go hand, in hand with academic freedom. It
produces standardized thought. not the pursuit of truth.
Yetlit was the pursuit of truth which the First Amend—
ment was designed to protect. A system which directly
or inevitably has that effect is alien to our system and
should be struck down. Its survival is a real threat to our
way of life. “'0 need be bold and adventuresome in our
thinking to survive. A school system producing students
trained as robots threatens to rob a generation of the
versatility that has been perhaps our greatest distinction.
The Framers knew the danger of dogmatism; they also
knew the strength that comes when the mind is free, when
ideas may be pursued wherever they lead. We forget
these teachings of the First Amendment when we sustain
this law.

Of course tl e school systems of the country need not
become cells for Communist activities; and the classrooms

 

 8—DISSENT

ADLER 1‘. BOARD OF EDUCATION. 0

need not become forums for propagantlizing the )Iarxist
creed. 3111; the guilt of the teacher should turn on overt,
acts. So long as she is a law abiding citizen, so long as
her performance within the public school system meets
professional standards, her private life, her political phi—
losophy. her social creetl should not be the cause of
reprisals against her.

 

  

 SUPREME COURT OF THE UNITED STATES

No. S.—OCTOBER TERM, 1951.

Irving Adler, George Friedlanden
Mark Friedlander,et al.,Appel— On Appeal From the
lants, Court of Appeals of
”- the State of New
The Board of Education of the York.
City of New York.

[March —, 1952.]

M11. .IUs'rICE DorcaLas, dissenting.

I have not been able to accept the recent doctrine that
a. citizen who enters the public service can be forced to
sacrifice his civil rights. I cannot for example find in our
constitutional scheme the power of a state to place its
employees in the category of second class citizens by de-
nying them freedom of thought and expression. The
Constitution guarantees freedom of thought and expres-
sion to everyone in our society. All are entitled to it; and
none needs it more than the teacher.

The publ