389 U.S. 54 (1967), 25, Whitehill v. Elkins

Docket Nº:No. 25
Citation:389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228
Party Name:Whitehill v. Elkins
Case Date:November 06, 1967
Court:United States Supreme Court

Page 54

389 U.S. 54 (1967)

88 S.Ct. 184, 19 L.Ed.2d 228

Whitehill

v.

Elkins

No. 25

United States Supreme Court

Nov. 6, 1967

Argued October 16, 1967

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Syllabus

Appellant, who had been offered a University of Maryland teaching position, brought this suit for declaratory relief challenging the constitutionality of a state "loyalty oath," which he refused to take. The oath, drafted by the Attorney General and approved by the Board of Regents, contains a certification that an applicant for public employment is not "engaged in one way or another in the attempt to overthrow the Government . . . by force or violence." Section 11 of the Ober Act authorizes state agencies to fix procedures to ascertain that a prospective employee is not a "subversive person," a term which, as defined in §§ 1 and 13, reaches one who is a member of a subversive organization which would alter, overthrow, or destroy the Government by revolution, force, or violence. A three-judge District Court dismissed the complaint.

Held:

1. Since the authority to prescribe oaths is provided by § 11 of the Ober Act, which is tied to §§ 1 and 13, the oath here must be considered not in isolation, but with reference to §§ 1 and 13. Pp. 56-57.

2. Sections 1 and 13 violate due process requirements of the Fourteenth Amendment, since they are unconstitutionally vague and overbroad by not distinctly delineating between permissible and impermissible conduct in the sensitive and important area of academic freedom. Pp. 57-62.

(a) In Gerende v. Election Board, 341 U.S. 56, which involved application of an oath to candidates in Maryland for public office, this Court did not reach the question now presented. P. 58.

(b) In the light of the gloss placed upon the Act by the Maryland courts, it is uncertain whether only those members of a "subversive" group are barred who seek to overthrow or destroy the Government by force or violence. Thus, a prospective employee could not know, save as he risked a perjury prosecution,

Page 55

whether as a member of a group aiming through violence to overthrow the Government he would "in one way or another" be engaged in an attempt at violent overthrow even though he was ignorant of the group's real aims. Pp. 57-62.

258 F.Supp. 589, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This suit for declaratory relief that a Maryland teacher's oath required of appellant was unconstitutional was heard by a three-judge court and dismissed. 258 F.Supp. 589. We noted probable jurisdiction. 386 U.S. 906.

[88 S.Ct. 185] Appellant, who was offered a teaching position with the University of Maryland, refused to take the following oath:

I, _________, do hereby (Print Name -- including middle initial) certify that I am not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.

Page 56

I further certify that I understand the aforegoing statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland (1957 edition).

The question is whether the oath is to be read in isolation or in connection with the Ober Act (Art. 85A, Md.Ann.Code, 1957), which ,by §§ 1 and 13, defines a "subversive" as

. . . any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization, as more fully defined in this article.

(Italics supplied.) Section 1 defines the latter terms: "subversive organization" meaning a group that would, inter alia, "alter" the form of government "by revolution, force, or violence"; "foreign subversive organization" is such a group directed, dominated, or controlled by a foreign government which engages in such activities.

The oath was prepared by the Attorney General and approved by the Board of Regents that has exclusive management of the university. It is conceded that the Board had authority to provide an oath, as § 11 of the Act directs every agency of the State which appoints, employs, or supervises officials or employees to establish procedures designed to ascertain before a person is appointed or employed that he or she "is not a subversive person." And that term is, as noted, defined by § 1 and 13. Our conclusion is that, since the authority to prescribe oaths is provided by § 11 of the Act, and since it is, in turn, tied to §§ 1 and 13, we must consider the

Page 57

oath with reference to §§ 1 and 13, not in isolation. Nor can we assume that the Board of Regents meant to encompass less than the Ober Act, as construed, sought to cover.

If the Federal Constitution is our guide, a person who might wish to "alter" our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of "alteration" by the amending process in Article V, and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue ( Terminiello v. Chicago, 337 U.S. 1), is as applicable to the States as it is to the Federal Government, and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U.S. 229, 235) as well as to advocacy and debate. So if §§ 1 and 13 of the Ober Act are the frame of reference in which the challenged oath is to be adjudged, we have important questions to resolve.

We are asked to treat §§ 1 and 13 as if they barred only those who seek to overthrow or destroy the Government by force or violence. Reference is made to Gerende v. Election Board, 341 U.S. 56, where, in considering the definition of "subversive" person applicable to § 15 of the Act, governing candidates for office, we accepted the representation of the Attorney General [88 S.Ct. 186] that he would advise the proper authorities in Maryland to take and adopt the narrower version of the term "subversive." The Court of Appeals of Maryland had indicated in Shub v. Simpson, 196 Md. 177, 76 A.2d 332, that the purpose of the Act was to reach that group, and that the words "revolution, force, or violence" in § 1 did not include a peaceful revolution but one accomplished by force or violence. Id. at 190-191, 76 A.2d at 337-338. In that view the "alteration" defined would be an alteration

Page 58

by force and violence. That construction had not yet been fashioned into an oath or certificate when Gerende reached us. That case involved an attempt by a candidate for public office in Maryland to require the election officials to dispense with an oath that incorporated the statutory language. The Court of Appeals refused the relief asked. We referred to the narrow construction of §§ 1 and 15 given in the Shub case saying:

We read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged "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 attempt....

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69 practice notes
  • Whitesell International Corp. v. Whitaker, 011811 MICA, 287569
    • United States
    • Michigan Court of Appeals of Michigan
    • January 18, 2011
    ...Clause, have been extended to the states by the Fourteenth Amendment. J & J Const Co, 468 Mich. at 729, citing Whitehill v Elkins, 389 U.S. 54, 57; 88 S.Ct. 184; 19 L.Ed.2d 228 (1967). [5] We disagree with the dissent that it is "impossible to conclude that WIC could have brought a......
  • 672 F.2d 1262 (7th Cir. 1982), 80-2013, Dow Chemical Co. v. Allen
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 25, 1982
    ...with approval in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967), and Whitehill v. Elkins, 389 U.S. 54, 60, 88 S.Ct. 184, 187, 19 L.Ed. 228 (1967). To be sure, "Our Nation is deeply committed to safeguarding academic freedom, which is of tr......
  • Whitesell International Corp. v. Whitaker, 091410 MICA, 287569
    • United States
    • Michigan Court of Appeals of Michigan
    • September 14, 2010
    ...Clause, have been extended to the states by the Fourteenth Amendment. J & J Const Co, 468 Mich. at 729, citing Whitehill v Elkins, 389 U.S. 54, 57; 88 S.Ct 184; 19 L Ed.2d 228 (1967). [5] The dissent maintains that res judicata was improper because MRC and Piercetek had not yet been for......
  • Passive Avoidance.
    • United States
    • Stanford Law Review Vol. 71 Nbr. 3, March 2019
    • March 1, 2019
    ...259-61 (1967) (invalidating the prohibition against employment of Communist Party members in any defense facility); Whitehill v. Elkins, 389 U.S. 54, 55-56, 61-62 (1967) (invalidating a state's loyalty oath requirement); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 71-73, 77......
  • Free signup to view additional results
65 cases
  • Whitesell International Corp. v. Whitaker, 011811 MICA, 287569
    • United States
    • Michigan Court of Appeals of Michigan
    • January 18, 2011
    ...Clause, have been extended to the states by the Fourteenth Amendment. J & J Const Co, 468 Mich. at 729, citing Whitehill v Elkins, 389 U.S. 54, 57; 88 S.Ct. 184; 19 L.Ed.2d 228 (1967). [5] We disagree with the dissent that it is "impossible to conclude that WIC could have brought a......
  • 672 F.2d 1262 (7th Cir. 1982), 80-2013, Dow Chemical Co. v. Allen
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • February 25, 1982
    ...with approval in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967), and Whitehill v. Elkins, 389 U.S. 54, 60, 88 S.Ct. 184, 187, 19 L.Ed. 228 (1967). To be sure, "Our Nation is deeply committed to safeguarding academic freedom, which is of tr......
  • Whitesell International Corp. v. Whitaker, 091410 MICA, 287569
    • United States
    • Michigan Court of Appeals of Michigan
    • September 14, 2010
    ...Clause, have been extended to the states by the Fourteenth Amendment. J & J Const Co, 468 Mich. at 729, citing Whitehill v Elkins, 389 U.S. 54, 57; 88 S.Ct 184; 19 L Ed.2d 228 (1967). [5] The dissent maintains that res judicata was improper because MRC and Piercetek had not yet been for......
  • 480 F.Supp. 941 (E.D.La. 1977), Civ. A. 77-2211, Socialist Workers Party v. Hardy
    • United States
    • Federal Cases United States District Courts 5th Circuit Eastern District of Louisiana
    • August 5, 1977
    ...by accepting a narrowed construction of the oath which had already been made by a Maryland court. Subsequently, in Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967), the Court found it necessary to invalidate a teacher's oath based on the same Maryland statute. Despite t......
  • Free signup to view additional results
3 books & journal articles
  • Passive Avoidance.
    • United States
    • Stanford Law Review Vol. 71 Nbr. 3, March 2019
    • March 1, 2019
    ...259-61 (1967) (invalidating the prohibition against employment of Communist Party members in any defense facility); Whitehill v. Elkins, 389 U.S. 54, 55-56, 61-62 (1967) (invalidating a state's loyalty oath requirement); Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 71-73, 77......
  • The anti-emergency Constitution.
    • United States
    • Yale Law Journal Vol. 113 Nbr. 8, June 2004
    • June 1, 2004
    ...of a hypothetical perjury prosecution. See id. at 286-87. (225.) 377 U.S. 360 (1964) (White, J.); see also Whitehill v. Elkins, 389 U.S. 54, 58-62 (1967) (overlapping vagueness and free speech analyses); Elfbrandt v. Russell, 384 U.S. 11 (1966). (226.) 380 U.S. 479, 494 (1965) (Brennan, J.)......
  • Amendment creep.
    • United States
    • Michigan Law Review Vol. 115 Nbr. 2, November - November 2016
    • November 1, 2016
    ...amendment procedures in deciding whether jurors had a constitutional right to a Spanish translator). (5.) E.g., Whitehill v. Elkins, 389 U.S. 54, 57 (1967) (relying on Article V to interpret the First (6.) E.g., Brown v. Bd. of Educ., 863 So. 2d 73, 90 (Ala. 2003) (Moore, C.J., concurring i......