Board of Ed. of City of New York v. Allen
| Decision Date | 28 May 1959 |
| Citation | 160 N.E.2d 60,188 N.Y.S.2d 515,6 N.Y.2d 127 |
| Parties | , 160 N.E.2d 60 In the Matter of BOARD OF EDUCATION OF CITY OF NEW YORK et al., Appellants, v. James E. ALLEN, Jr., as Commissioner of Education of State of New York, et al., Respondents. In the Matter of BOARD OF HIGHER EDUCATION OF CITY OF NEW YORK, Appellant, v. James E. ALLEN, Jr., as Commissioner of Education of State of New York, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Charles H. Tenney, Corp. Counsel, New York City (Leo A. Larkin, Saul Moskoff, New York City, John F. Kelly and Milton Weinberg, New York City, of counsel), for appellants in each of the above-entitled proceedings.
Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, for Comr. of Education, respondent in each of the above-entitled proceedings.
Victor Rabinowitz, New York City, for Harry Adler and others, respondents in the first above-entitled proceeding.
David I. Ashe, New York City, for Samuel S. Cohen, respondent in the first above-entitled proceeding.
Osmond K. Fraenkel, New York City, for Charles W. Hughes, respondent in the second above-entitled proceeding.
Jerome R. Hellerstein and Will Maslow, New York City, for American Jewish Congress, amicus curiae, in support of respondents' position in the first above-entitled proceedings.
Robert M. Benjamin, Frank E. Karelsen and Bethuel M. Webster, New York City, for Public Education Ass'n, amicus curiae, in support of respondents' position in the first above-entitled proceeding.
Frank Serri, Brooklyn, Harold D. Kozupsky and Robert Silk, New York City, for National Lawyers Guild, New York City Chapter, amicus curiae, in support of respondents' position in the first above-entitled proceeding.
Benjamin Mazen and Jules Kolodny, New York City, for New York Teachers Guild amicus curiae, in support of respondents' position in the first above-entitled proceeding.
The individual respondents in the first of these cases are three teachers, a school clerk and a principa in the New York City school system who refused, when questioned by petitioner-appellant, Superintendent of Schools of the City of New York, to identify other school personnel as past or present members of the Communist party. All admitted past, but denied present membership in the Communist party themselves. For their refusal to answer the questions the Superintendent suspended them from their employment and instituted disciplinary action designed to terminate their terms.
The individual respondent in the second of these cases is an associate professor at Hunter College whom the petitioner-appellant, Board of Higher Education of the City of New York, dismissed among other reasons for similar refusal to answer questions about the 'past or present membership by municipal college staff members in the Communist munist Party or other subversive organizations.' 1
In both cases appeals were taken to the Commissioner of Education of the State of New York from the determinations of the respective petitioners. The Commissioner ruled against the petitioners in both appeals. In the first case the Commissioner enjoined the board and Superintendent of Schools from directing the defendant employees of the board to identify other present employees thereof who had been or then were members of the Communist party, except the defendant Cohen, who, as a school principal, was directed to name any person in his particular school whom he knew or believed to be a member of the Communist party. In the second case, the Commissioner of Education annulled the dismissal of the defendant by the Board of Higher Education, requiring simply that Hughes be given an opportunity to answer questions with respect to statistics (as to members) involving Communist party membership of other faculty members.
In essence, the Commissioner determined that the refusal of the defendant employees to submit to the interrogation concerning Communist affiliation, past or present, of other teachers furnishes no basis for disciplinary action by the petitioners.
The petitioners the two New York City Boards of Education and the Superintendent of Schools of the City of New York thereupon instituted the present article 78 proceedings to review and annul the Commissioner's determination. The court at Special Term confirmed the Commissioner's decision and dismissed the petitions. Pointing out that the Commissioner's determination is, by section 310 of the Education Law, final and conclusive in matters relating to education 'unless arbitrary', the court declared that the (6 Misc.2d 453, 167 N.Y.S.2d 224) 'view of the Commissioner in the arguable field of judgment and opinion cannot be said, as a matter of law, to lack rational basis' and that his determination is not 'illegal, arbitrary and capricious.' The Appellate Division affirmed unanimously.
On this appeal the petitioners argue that the Commissioner's decision prevents enforcement of the Feinberg Law and represents an illegal attempt in the guise of an administrative determination to nullify and repeal that statute and that the Commissioner's determination does not involve educational policy affecting the school system but, instead, is concerned solely with upholding the refusal of individuals who, for legally invalid reasons, refuse to answer relevant questions during an inquiry into subversion mandated by the Legislature and that his action is, therefore, arbitrary and illegal.
The Commissioner, on the other hand, asserts that his determination is one of educational policy; that all he determined was that a Board of Education may not suspend or dismiss a teacher who is unwilling to accuse another teacher of being or having been a Communist; that such determination was made in the exercise of judgment and is neither arbitrary nor capricious; and that his ruling does not repeal or prevent enforcement of the Feinberg Law.
The initial question to be answered is the scope of the court's review.
The Commissioner of Education is a constitutionally created officer. Section 4 of article V of the Constitution provides that: 'The head of the department of education shall be The Regents of the University of the State of New York, who shall appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department.' Section 305 of the Education Law, in turn, declares that the Commissioner of Education 'is the chief executive officer of the state system of education and of the board of regents.' Section 310 of the Education Law, which deals with appeals to the Commissioner, reads, in pertinent part:
'Any person conceiving himself aggrieved may appeal or petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article and his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever. Such appeal or petition may be made in consequence of any action: (emphasis supplied). (There follows in 6 subdivisions a listing of various officials and bodies whose action may be reviewed and then the statute continues with the ommibus 7th subdivision.)
This court has said that the object of section 310 of the Education Law 'is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts' (Bullock v. Cooley, 225 N.Y. 566, 576-577, 122 N.E. 630, 633; emphasis supplied). The comment has also been made that 'Such a policy assures determinations by a person conversant with school problems' (Nestler v. Board of Examiners, 192 Misc. 663, 665, 80 N.Y.S.2d 747, 748).
If the words of section 310 were to be read literally there could be no court review whatever of the Commissioner's decisions on appeal, for the statute states that his decision 'shall be final and conclusive, and not subject to question or review in any place or court whatever.' However, our court has determined that the Legislature did not intend that the words are to be so read. Thus, we have said that 'decisions by the Commissioner of Education are final unless purely arbitrary'. Ross v. Wilson, 308 N.Y. 605, 608, 127 N.E.2d 697, 698, emphasis supplied; Levitch v. Board of Education, 243 N.Y. 373, 375, 153 N.E. 495, 496. The term 'arbitrary', standing by itself, would be quite sufficient to make it plain that only a narrow review of the Commissioner's decisions is available in the courts. In the above-cited cases we undertook to emphasize the point by employing the phrase 'purely arbitrary'. With this rule as our guide we turn to a consideration of the issues to be resolved.
In his decision the Commissioner stated, inter alia, that the problem 'affects the administration of our entire education system'; that there 'is near unanimity on the part of teachers throughout the State that indiscriminate use of this type of interrogation immediately engenders an atmosphere of suspicion and uneasiness in the schools and colleges'; that '(t)rust which is necessary to keep morale at a high level is undermined'; that it 'is notorious that part of the Communist philosophy encompasses falsehood as a means to an end'; that the 'allegation by a member or former member of this organization standing alone could well be untrustworthy, yet it levels a deadly suspicion which is most difficult to disprove'; that the 'literature of Communists who have recanted specifically sets forth allegations that their ilk have deliberately named...
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