Carr v. Young, 5-1978

• Decision Date: 08 February 1960
• Docket Number: No. 5-1978,5-1978
• Citation: 331 S.W.2d 701,231 Ark. 641
• Parties: Max CARR et al., Appellants, v. R. A. YOUNG et al., Appellees.
• Court: Arkansas Supreme Court

Page 701

331 S.W.2d 701

231 Ark. 641

Max CARR et al., Appellants, v. R. A. YOUNG et al., Appellees.

No. 5-1978.

Supreme Court of Arkansas.

Feb. 8, 1960.

Rehearing Denied Feb. 29, 1960.

Edwin E. Dunaway, Little Rock, for appellants.

Bruce Bennett, Atty. Gen., by Bill J. Davis and Mehaffy, Smith & Williams, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This case involves the validity of the teacher-affidavit law, Act 10 of the 1958 special session. The appeal is from a declaratory decree upholding the statute.

Two suits were consolidated in the trial court. In one the appellant Carr, an associate professor of music at the University of Arkansas, acting for himself and others similarly situated, sought a decree declaring the act unconstitutional and enjoining its enforcement by the defendants, the president and trustees of the University. The other case is a similar class suit brought by the appellant Gephardt, a vocational printing instructor at Little Rock Central High School, asking for like relief against the Little Rock Special School District and its superintendent and directors. Both plaintiffs assert that Act 10 infringes upon their freedom of speech, freedom of assembly, freedom of association, freedom of thought, and allied rights, all protected by the Fourteenth Amendment and by parallel provisions in the Arkansas constitution, Const. art. 2, § 2.

Act 10 provides that no person shall be employed as a teacher in any of the state's public schools or as a superintendent or principal in any elementary or secondary school without having first filed with the employing authority an affidavit giving the names and addresses of all organizations and associations to which the applicant has belonged within the preceding five years or to which he has paid regular dues or made regular contributions within that time. Other provisions of the act nullify any contract made in violation of the statute, permit the recovery of funds paid under such a void contract, and fix civil and criminal penalties for the willful filing of a false affidavit.

The appellants' attack upon the act may be considered in two aspects: First, is Act 10 unconstitutional on its face? Secondly, if the act is outwardly valid, does the record show that the statute was intended to be applied, and will in fact be applied, in such a way as to deprive the appellants and those they represent of their constitutional rights?

We do not find Act 10 to be invalid on its face. By § 1 of the act the legislature declared its belief that the public school system would be benefited as a result of the school authorities having the required information about applicants for the positions covered by the statute. It cannot be doubted that the information would often be of real value to the employing school board. We are not convinced that either the federal or the state constitution compels a school board to engage its teachers without first inquiring about the matters that the act requires to be disclosed.

A similar question was presented long ago, in McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517, where a policeman complained of a city regulation that prohibited him from soliciting money or aid for political purposes. In the familiar words of Justice Holmes: 'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. * * * the city may impose any reasonable condition upon holding offices within its control.'

The appellants are not entitled to demand that the University and the Little Rock school board employ them without making any inquiry about organizations to which they have belonged within a period reasonably close to the date of the application. Such investigations are the usual practice among private employers, and, as the court pointed out in Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 912, 95 L.Ed. 1317, public employers are not denied the privilege of making similar inquires. From that opinion: 'We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment. The affidavit requirement is valid.'

The prima facie validity of Act 10 is pretty well settled by the holding in Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 385, 96 L.Ed. 517, where the court sustained a state statute forbidding the employment in the public school system of persons belonging to organizations found to be subversive. This language in the opinion is peculiarly pertinent to the case at bar:

'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 officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may...