342 U.S. 485 (1952), 8, Adler v. Board of Education of City of New York

Docket Nº:No. 8
Citation:342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517
Party Name:Adler v. Board of Education of City of New York
Case Date:March 03, 1952
Court:United States Supreme Court
 
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Page 485

342 U.S. 485 (1952)

72 S.Ct. 380, 96 L.Ed. 517

Adler

v.

Board of Education of City of New York

No. 8

United States Supreme Court

March 3, 1952

Argued January 3, 1952

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

The Civil Service Law of New York, § 12-a, makes ineligible for employment in any public school any member of any organization advocating the overthrow of the Government by force, violence or any unlawful means. Section 3022 of the Education Law, added by the Feinberg Law, requires the Board of Regents (1) to adopt and enforce rules for the removal of any employee who violates, or is ineligible under, § 12-a, (2) to promulgate a list of organizations described in § 12-a, and (3) to provide in its rules that membership in any organization so listed is prima facie evidence of disqualification for employment in the public schools. No organization may be so listed, and no person severed from or denied employment, except after a hearing and subject to judicial review.

Held: This Court finds no constitutional infirmity in § 12-a of the Civil Service Law of New York or in § 3022 of the Education Law. Pp. 486-496.

1. Section 3022 and the rules promulgated thereunder do not constitute an abridgment of the freedom of speech and assembly of persons employed or seeking employment in the public schools of New York. Garner v. Los Angeles Board, 341 U.S. 716. Pp. 491-493.

2. The provision of § 3022 directing the Board of Regents to provide in rules thereunder that membership in any organization so listed by the Board shall constitute prima facie evidence of disqualification for employment in the public schools does not deny members of such organizations due process of law. Pp. 494-496.

3. The use of the word "subversive" in § 1 of the Feinberg Law, which is a preamble and not a definitive part of the Act, does not render the statute void for vagueness under the Due Process Clause, in view of the fact that, in subdivision 2 of § 3022, it is given a very definite meaning -- i.e., an organization that advocates the overthrow of government by force or violence. P. 496.

4. The constitutionality of § 3021 of the Education Law not having been questioned in the proceedings in the lower courts and being raised here for the first time, it will not be passed upon by this Court before the state courts have had an opportunity to pass upon it. P. 496.

301 N.Y. 476, 95 N.E.2d 806, affirmed.

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In a declaratory judgment action, the Supreme Court of New York, Kings County, held that subdivision (c) of § 12-a of the New York Civil Service Law, § 3022 of the New York Education Law, and the rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and enjoined action thereunder by the Board of Education of New York City. 196 Misc. 873, 95 N.Y.S.2d 114. The Appellate Division reversed. 276 A.D. 527, 96 N.Y.S.2d 466. The Court of Appeals of New York affirmed the decision of the Appellate Division. 301 N.Y. 476, 95 N.E.2d 806. On appeal to this Court, affirmed, p. 496.

MINTON, J., lead opinion

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

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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 judgment on the pleadings, the court held that subdivision (c) 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, 95 N.Y.S.2d 114. The Appellate Division of the Supreme Court reversed, 276 A.D. 527, 96 N.Y.S.2d 466, and the Court of Appeals affirmed the judgment of the Appellate Division, 301 N.Y. 476, 95 N.E.2d 806. 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

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this law, the Feinberg Law was passed, adding a new section, § 3022, to the Education Law of the State of New York, which section, so far as here [72 S.Ct. 383] pertinent, is set forth in the margin.4 The Feinberg Law was also to implement

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§ 3021 of the Education Law of New York.5 The constitutionality of this section was not attacked in the proceedings below.

The preamble of the Feinberg Law, § 1, makes elaborate findings that members of subversive groups, particularly of the Communist Party and its affiliated organizations, have been infiltrating into public employment in the public schools of the State; that this has occurred and continues notwithstanding the existence of protective statutes 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 disseminated 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

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oath, agreement, pledge, or understanding to follow, advocate 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 measure. Finally, to protect the children from such influence, it was thought essential that the laws prohibiting members of such groups, such as the Communist Party or its affiliated organizations, from obtaining [72 S.Ct. 384] or retaining employment 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 Feinberg 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, 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. In addition, the Court of Appeals construed the statute in conjunction with Article 78 of the New York Civil Practice 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 membership in any listed organization, after notice and hearing, "shall constitute prima facie evidence for disqualification

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for appointment to or retention in any office or position in the school system";6 but before one who is 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.7 It is § 1-a of the Civil Service Law, as implemented by the Feinberg Law as above indicated, that is under attack here.

It is first argued that the Feinberg Law and the rules promulgated thereunder constitute an abridgment of the

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freedom of speech and assembly of persons employed or seeking employment 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 [72 S.Ct. 385] own terms. United Public Workers v. Mitchell, 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 question, 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 organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.

The constitutionality of the first proposition is not questioned here. Gitlow v. New York, 268 U.S. 652, 667-672, 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. Los Angeles Board, 341 U.S. 716. We there said:

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...

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