American Civil Liberties Union of Southern California v. Board of Education of City of Los Angeles

• Decision Date: 24 May 1960
• Citation: 5 Cal.Rptr. 215
• Court: California Court of Appeals Court of Appeals
• Parties: AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, a California Corporation, Eason Monroe, Director, and Willard Carpenter, Associate Director, Petitioners, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Respondent. Civ. 24573.

Page 215

5 Cal.Rptr. 215

AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, a California Corporation, Eason Monroe, Director, and Willard Carpenter, Associate Director, Petitioners, v. BOARD OF EDUCATION OF the CITY OF LOS ANGELES, Respondent.

Civ. 24573.

District Court of Appeal, Second District, Division 2, California.

May 24, 1960.

Hearing Granted July 20, 1960.

Opinion vacated 10 Cal.Rptr. 647.

A. L. Wirin and Abraham Gorenfeld, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and Ronald L. Schneider, Deputy County Counsel, Los Angeles, for respondent.

FOX, Presiding Justice.

Petitioners seek a writ of mandate to compel the Board of Education of the City of Los Angeles to grant their application for the use of certain public school buildings in which to hold a series of monthly meetings which would be open to the public.

Petitioners' application for the use of the school buildings was denied by respondent Board because petitioners failed and refused to make and deliver to the Board a written 'Statement of Information' as required by section 16565 of the Education Code, which implements section 16564 of the same code (Formerly, sections 19440 and 19441.) The pertinent portion of the latter section reads:

'Any use, by any individual, society, group, or organization for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States or of the State by force, violence, or other unlawful means shall not be permitted or suffered.' The material portions of the implementing section (§ 16565), which includes the required statement of information, provide:

'No governing board of a school district shall grant the use of any school property to any person or organization for any use in violation of Section 16564.

'For the purpose of determination by such governing board whether or not any individual, society, group or organization applying for the use of such school property intends to violate Section 16564, the governing board shall require the making and delivery to such governing board, by such applicant of a written statement of information in the following form:

'Statement of Information

'The undersigned states that, to the best of his knowledge, the school property for use of which application is hereby made will not be used for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States by force, violence lence or other unlawful means;

'That .........., the organization on whose behalf he is making application for use of school property, does not, to the best of his knowledge, advocate the overthrow of the Government of the United States or of the State of California by force, violence, or other unlawful means, and that, to the best of his knowledge, it is not a communist-action organization or communist-front organization required by law to be registered with the Attorney General of the United States. This statement is made under the penalties of perjury.

'________

'(Signature) 'The school board may require the furnishing of such additional information as it deems necessary to make the determination that the use of school property for which application is made would not violate Section 16564 of the Education Code.'

Petitioners' refusal to furnish the statement of information was based on the ground that the requirement to furnish such information violated their rights and liberties under the Constitutions of both the United States and the State of California.

At the outset we must determine the meaning and purpose of the above quoted sections of the Education Code. This may readily be ascertained by considering together the quoted portion of section 16564 and the first paragraph of section 16565, also quoted, supra. When so considered, it is clear that the effect of these two sections is to place every school board under a legislative mandate not to permit any 'individual, society, group, or organization' to make 'any use' of school property 'for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow' of either the federal or state government by force, violence or other unlawful means. By these sections the legislature has declared that school buildings shall neither be used for the commission of subversive acts nor acts in furtherance of any movement that has for its objective subversive results. It will be noted that these sections prohibit the use of school buildings for the commission of acts as distinguished from the mere academic discussion of revolutionary doctrine.

The second paragraph of section 16565 implements the foregoing legislative intent by providing for the submission to the school board of the required 'Statement of Information' upon which the board may determine in advance whether or not the proscribed acts are contemplated by the applicant. The first paragraph of the 'Statement of Information' requires the applicant to state (under penalty of perjury) that 'to the best of his knowledge' no use will be made of the school property 'for the commission of any act intended to further any program or movement the purpose of which is to accomplish the overthrow of the Government of the United States * * * means.' This paragraph follows substantially the wording of the first paragraph of section 16564. As we have said, such language concerns itself only with acts of subversion or acts intended to further the purposes of any subversive element. The second paragraph of the 'Statement of Information' requires that the applicant state that, 'to the best of his knowledge,' the organization he represents does not 'advocate' the violent overthrow of the federal or state governments and that it is not a 'communist-action' or 'communist-front' organization 'required by law to be registered with the Attorney General of the United States.' The deliberate use of the word 'advocate' has, in this context, a very narrow meaning. The present statute was adopted by the Legislature subsequent to a decision by the Supreme Court of this State which held unconstitutional a statute prohibiting the use of school property by any person or group having as its 'object' the overthrow, or the 'advocacy' of the overthrow, of the federal or state governments by violence. Danskin v. San Diego Unified School District, 28 Cal.2d 536, 171 P.2d 885. The court viewed the term 'advocacy' in its broad sense; i. e., the mere expression of political philosophy and doctrines in the public forum. We must assume that section 16564 and 16565 were deliberately formulated to comply with the pronouncements and holding of the court in the Danskin case. With this in mind, we must determine the meaning which the term 'advocate' has acquired since the year 1946 when the Danskin case was decided.

'Advocacy' is no longer a general term meaning dissemination of doctrines and philosophical concepts in the market place of ideas. It has become a word of art with a narrow and strictly confined meaning when used in relation to the proscription of subversive and revolutionary activities. The case of Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356, decided in 1957, is apposite. Mr. Justice Harlan, speaking for the majority, in construing the term 'advocate' as deliberately used by Congress in the Smith Act, stated: '* * * our first duty is to construe this statute [18 U.S.C. §§ 371, 2385]. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words 'advocate' and 'teach' in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. (Citation.) * * * beyond all question * * * Congress was aware of the distinction between advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and * * * it did not intend to disregard it. The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action.' 354 U.S. at pages 319, 320, 77 S.Ct. at pages 1077. (Emphasis added.) See also Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, wherein 'advocacy' and 'discussion' were similarly distinguished.

Therefore, we hold that the term 'advocate the overthrow of the Government' in the 'statement of Information' was deliberately used by the Legislature in the narrow sense defined so explicitly in the Yates case. The Legislature may not be assumed to have enacted a useless ans unconstitutional provision in the face of the peremptory commands of the Danskin decision. Thus, the purposes of section 16564 are properly served by this portion of the 'Statement of Information,' in that an organization which advocates the overthrow of the Government is an organization which is very likely to commit acts toward that end.

The last part of the second paragraph of the 'Statement of Information' refers to 'communist-front' and 'communist-action' organizations required to register with the Attorney General of the United States. Again this information implements the intent and purpose of section 16564. The sole interest of the school board is to determine in advance whether acts of subversion will or will not be committed on school premises by the applicant in question. If the applicant is a 'communist-front' or 'communist-action' organization, the likelihood of such a group committing acts tending to further its own interests is substantial. Furthermore, 'it has been established by legislative findings and judicial decisions that the Communist Party is a continuing conspiracy against our government. (Citations.)' Board of Education etc. v. Mass, 1956, 47 Cal.2d 494, 497-498, 304 P.2d...