Keyishian v. Board of Regents of University of State of New York

Citation17 L.Ed.2d 629,385 U.S. 589,87 S.Ct. 675
Decision Date23 January 1967
Docket NumberNo. 105,105
PartiesHarry KEYISHIAN et al., Appellants, v. The BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK et al
CourtU.S. Supreme Court

Richard Lipsitz, Buffalo, N.Y., for appellants.

Ruth V. Iles and John C. Crary, Jr., Albany, N.Y., for appellees.

Mr. Justice BRENNAN delivered the opinion of the Court.

Appellants were members of the faculty of the privately owned and operated University of Buffalo, and became state employees when the University was merged in 1962 into the State University of New York, an institution of higher education owned and operated by the State of New York. As faculty members of the State University their continued employment was conditioned upon their compliance with a New York plan, formulated partly in statutes and partly in administrative regulations,1 which the State utilizes to prevent the appointment or retention of 'subversive' persons in state employment.

Appellants Hochfield and Maud were Assistant Professors of English, appellant Keyishian an instructor in English, and appellant Garver, a lecturer in Philosophy. Each of them refused to sign, as regulations then in effect required, a certificate that he was not a Communist, and that if he had ever been a Communist, he had communicated that fact to the President of the State University of New York. Each was notified that his failure to sign the certificate would require his dismissal. Keyishian's one-year-term contract was not renewed because of his failure to sign the certificate. Hochfield and Garver, whose contracts still had time to run, continue to teach, but subject to proceedings for their dismissal if the constitutionality of the New York plan is sustained. Maud has voluntarily resigned and therefore no longer has standing in this suit.

Appellant Starbuck was a nonfaculty library employee and part-time lecturer in English. Personnel in that classification were not required to sign a certificate but were required to answer in writing under oath the question, 'Have you ever advised or taught or were you ever a member of any society or group of persons which taught or advocated the doctrine that the Government of the United States or of any political subdivisions thereof should be overthrown or overturned by force, violence or any unlawful means?' Starbuck refused to answer the question and as a result was dismissed.

Appellants brought this action for declaratory and injunctive relief, alleging that the state program violated the Federal Constitution in various respects. A three- judge federal court held that the program was constitutional. 255 F.Supp. 981.2 We noted probable jurisdiction of appellants' appeal, 384 U.S. 998, 86 S.Ct. 1921, 16 L.Ed.2d 1012. We reverse.


We considered some aspects of the constitutionality of the New York plan 15 years ago in Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. That litigation arose after New York passed the Feinberg Law which added § 3022 to the Education Law, McKinney's Consol. Laws, c. 16.3 The Feinberg Law was enacted to implement and enforce two earlier statutes. The first was a 1917 law, now § 3021 of the Education Law, under which 'the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act' is a ground for dismissal from the public school system. The second was a 1939 law which was § 12—a of the Civil Service Law when Adler was decided and, as amended, is now § 105 of that law, McKinney's Consol.Laws, c. 7. This law disqualifies from the civil service and from employment in the educational system any person who advocates the overthrow of government by force, violence, or any unlawful means, or publishes material advocating such overthrow or organizes or joins any society or group of persons advocating such doctrine.

The Feinberg Law charged the State Board of Regents with the duty of promulgating rules and regulations providing procedures for the disqualification or removal of persons in the public school system who violate the 1917 law or who are ineligible for appointment to or retention in the public school system under the 1939 law. The Board of Regents was further directed to make a list, after notice and hearing, of 'subversive' organizations, defined as organizations which advocate the doctrine of overthrow of government by force, violence, or any unlawful means. Finally, the Board was directed to provide in its rules and regulations that membership in any listed organization should constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the State.

The Board of Regents thereupon promulgated rules and regulations containing procedures to be followed by appointing authorities to discover persons ineligible for appointment or retention under the 1939 law, or because of violation of the 1917 law. The Board also announced its intention to list 'subversive' organizations after requisite notice and hearing, and provided that membership in a listed organization after the date of its listing should be regarded as constituting prima facie evidence of disqualification, and that membership prior to listing should be presumptive evidence that membership has continued, in the absence of a showing that such membership was terminated in good faith. Under the regulations, an appointing official is forbidden to make an appointment until after he has first inquired of an applicant's former employers and other persons to ascertain whether the applicant is disqualified or ineligible for appointment. In addition, an annual inquiry must be made to determine whether an appointed employee has ceased to be qualified for retention, and a report of findings must be filed.

Adler was a declaratory judgment suit in which the Court held, in effect, that there was no constitutional infirmity in former § 12-a or in the Feinberg Law on their faces and that they were capable of constitutional application. But the contention urged in this case that both § 3021 and § 105 are unconstitutionally vague was not heard or decided. Section 3021 of the Education Law was challenged in Adler as unconstitutionally vague, but because the challenge had not been made in the pleadings or in the proceedings in the lower courts, this Court refused to consider it. 342 U.S., at 496, 72 S.Ct., at 386. Nor was any challenge on grounds of vagueness made in Adler as to subdivisions 1(a) and (b) of § 105 of the Civil Service Law.4 Subdivision 3 of § 105 was not added until 1958. Appellants in this case timely asserted below the unconstitutionality of all these sections on grounds of vagueness and that question is now properly before us for decision. Moreover, to the extent that Adler sustained the provision of the Feinberg Law constituting membership in an organization advocating forceful overthrow of government a ground for disqualification, pertinent constitutional doctrines have since rejected the premises upon which that conclusion rested. Adler is therefore not dispositive of the constitutional issues we must decide in this case.


A 1953 amendment extended the application of the Feinberg Law to personnel of any college or other institution of higher education owned and operated by the State or its subdivisions. In the same year, the Board of Regents, after notice and hearing, listed the Communist Party of the United States and of the State of New York as 'subversive organizations.' In 1956 each applicant for an appointment or the renewal of an appointment was required to sign the so-called 'Feinberg Certificate' declaring that he had read the Regents Rules and understood that the Rules and the statutes constituted terms of employment, and declaring further that he was not a member of the Communist Party, and that if he had ever been a member he had communicated that fact to the President of the State University. This was the certificate that appellants Hochfield, Maud, Keyishian, and Garver refused to sign.

In June 1965, shortly before the trial of this case, the Feinberg Certificate was rescinded and it was announced that no person then employed would be deemed ineligible for continued employment 'solely' because he refused to sign the certificate. In lieu of the certificate, it was provided that each applicant be informed before assuming his duties that the statutes, §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law, constituted part of his contract. He was particularly to be informed of the disqualification which flowed from membership in a listed 'subversive' organization. The 1965 announcement further provides: 'Should any question arise in the course of such inquiry such candidate may request * * * a personal interview. Refusal of a candidate to answer any question relevant to such inquiry by such officer shall be sufficient ground to refuse to make or recommend appointment.' A brochure is also given new applicants. It outlines and explains briefly the legal effect of the statutes and invites any applicant who may have any question about possible disqualification to request an interview. The covering announcement concludes that 'a prospective appointee who does not believe himself disqualified need take no affirmative action. No disclaimer oath is required.'

The change in procedure in no wise moots appellants' constitutional questions raised in the context of their refusal to sign the now abandoned Feinberg Certificate. The substance of the statutory and regulatory complex remains and from the outset appellants' basic claim has been that they are aggrieved by its application.


Section 3021 requires removal for 'treasonable or seditious' utterances or acts. The 1958 amendment to § 105 of the Civil Service Law, now subdivision 3 of that section, added such utterances or acts as a ground for...

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