MATTER OF DANIMAN v. Bd. of Educ. of City of NY

• Decision Date: 05 December 1952
• Citation: 202 Misc. 915
• Parties: In the Matter of Mary I. Daniman et al., Petitioners,<BR>v.<BR>Board of Education of the City of New York, Respondent.<BR>In the Matter of Vera Shlakman et al., Petitioners,<BR>v.<BR>Board of Higher Education of the City of New York, Respondent.
• Court: New York Supreme Court

202 Misc. 915

In the Matter of Mary I. Daniman et al., Petitioners,

v.Board of Education of the City of New York, Respondent.

In the Matter of Vera Shlakman et al., Petitioners,

v.Board of Higher Education of the City of New York, Respondent.

December 5, 1952.

Witt & Cammer for petitioners.

Denis M. Hurley, Corporation Counsel (Michael A. Castaldi of counsel), for respondents.

F. E. JOHNSON, J.

In these two proceedings under article 78 of the Civil Practice Act, some of the petitioners were dismissed by the board of higher education and the others by the board of education of the city of New York, but the grounds upon which all the dismissals took place are so similar that the proceedings have been heard together, and should be decided together.

There is very little, if any, dispute of fact, and the differences of opinion are almost altogether on the law; they arise partly because of the difference of view as to the status that these teachers had in relation to the City of New York. Generally speaking, the petitioners deny that they had such a relationship or status as made applicable to them section 903 of the City Charter, under which the respondents here claimed power to act. They decided that the section was self-operating, and that the refusal of these petitioners to answer the questions asked them effectuated their dismissals, at least in substance, by reason of the language of that section.

One or more duly designated members of the Senate of the United States held a hearing on the general subject of subversive influences; each of these petitioners appeared upon demand and all were confronted with various questions (which are not relevant here) in addition to the one or two questions that are relevant, namely, their relation to the Communist party or to communism. The phrasing of the questions on these subjects is not criticized, nor can there be any doubt about their meaning; there is no suggestion that the slightest confusion did, or could, exist among any of the petitioners as to what they were being asked, or the meaning of the questions. In substance, the whole issue or problem here arises out of the questions concerning the present or past membership of these petitioners in the Communist party. There were other similar, or related, questions that need not be detailed.

The world events that have been common knowledge for years past require this court to take judicial notice that the party — which is really the group of fourteen men who, by armed might, hold the disarmed Russians in their grasp — is not only preaching the destruction of non-communist governments, but by espionage, sabotage, oppression and murder are, and have been, busily and successfully undermining the freedom of other disarmed nations that are now in a state of hopeless captivity to that small group. Their agent, the New York Communist Party, is continuously following the program here; their success among certain Americans, who have sold out their own government, is too well known to be further dwelt upon.

The 1949 Legislature declared the policy of the State (L. 1949, ch. 360, § 1) as to Communist party members, as teachers, when it said: "The legislature further finds and declares that in order to protect the children in our state from such subversive influence it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist party and its affiliated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced."

Mr. Marshall, while a board of education member, said in 1951: "The evidence before us is clear that Communist Party members have a loyalty to Soviet Russia and to the promotion of world Communism which is a higher loyalty than loyalty to their own country; that class hatred and the destruction of the bourgeois state are part of Communist doctrine; that the seizure of power in the interest of creating a so-called dictatorship of the proletariat is implicit in Communist Party membership; and that Party members engaged in education have the special task of using education for these purposes. The record shows this."

In his concurring opinion in the 1951 Dennis case (Dennis v. United States, 341 U. S. 494, 564) Justice JACKSON, of the Supreme Court of the United States, said: "The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined members. From established policy it tolerates no deviation and no debate. It seeks members that are, or may be, secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions where it can compel employers to accept and retain its members. It also seeks to infiltrate and control organizations of professional and other groups. Through these placements in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion."

Our Court of Appeals has said that it is slanderous to call anyone a communist because of the low repute in which that so-called ideology is held; it is not yet a crime to call anyone a communist. There have been many impressive adjudications, too well known to be cited here, that the Communist party is, and has been, committed to the program of changing all other governments by force, and that in this country a part of its program is the destruction, by force, of the government under which we live; nowhere, however, is it claimed or has it been claimed that membership in the Communist party is a crime.

Petitioners did not, however, merely refuse to answer since that might have been contumacious, so they all gave the lawyerlike answer that undoubtedly was formulated for them by the counsel who either represented them, or most of them, on various occasions and who, as was not contradicted upon the argument hereof, gave active legal help in the formulation of some of their oral answers.

Those answers, in substance, were similar in that they all said that they would not say yes or no because the answer might tend to incriminate them; most of them specified the particular amendment of the Federal Constitution relied upon but, in substance, they said they would not reply lest they incriminate themselves. Their answers, as the minutes show, were that they were in danger of self-incrimination if they answered; they refused to admit anything, refused to make any answer that, as some said, might be used against them; in effect, and almost in form, refused to testify, as some said, against themselves.

It is not claimed here that any particular answer given by any one of them had any other meaning than the foregoing; the issue was met squarely, upon the argument here by their counsel, who did not seek in any way to evade the plain significance of what they were saying, but who took the position that they could not be required to answer such questions.

That argument is a combination of (1) a plea of the Federal Amendment and (2) a denial that the question was allowably asked because of the alleged inapplicability of the questions to these petitioners, since they claimed to be not within section 903.

After an exhaustive argument upon these petitions the court was not able to learn what crime it was that they feared to expose themselves to prosecution for or what possible plausibility there was to the claim that answering might incriminate them.

That vain attempt to learn, upon the argument hereof, how it could reasonably or with intellectual honesty, be said that one who was asked that question could sensibly say that answering it might incriminate him, leaves the question still unanswered.

It is a fair inference, if there is any need to draw one, that they appeared before the committee well aware of why they were there, and all prepared to give a similar answer when each was asked that main question; there...