Wieman v. Updegraff, No. 14

CourtUnited States Supreme Court
Writing for the CourtCLARK
Citation344 U.S. 183,73 S.Ct. 215,97 L.Ed. 216
PartiesWIEMAN et al. v. UPDEGRAFF et al
Docket NumberNo. 14
Decision Date15 December 1952

344 U.S. 183
73 S.Ct. 215
97 L.Ed. 216
WIEMAN et al.

v.

UPDEGRAFF et al.

No. 14.
Argued Oct. 16, 1952.
Decided Dec. 15, 1952.

Mr. Don Emery, Oklahoma City, Okl., Mr. Robert J. Emery, Oklahoma City, Okl., on the brief, for appellants.

Page 184

Messrs. Paul W. Updegraff, Norman, Okl., Fred Hansen, Oklahoma City, Okl., for appellees.

Mr. Justice CLARK delivered the opinion of the Court.

This is an appeal from a decision of the Supreme Court of Oklahoma, Board of Regents v. Updegraff, 205 Okl. 301, 237 P.2d 131, 135, upholding the validity of a loyalty oath1 prescribed by Oklahoma statute for all state officers and

Page 185

employees. Okl.Stat.1951, Tit. 51, §§ 37.1—37.8. Appellants, employed by the state as members of the faculty and staff of Oklahoma Agricultural and Mechanical College, failed, within the thirty days permitted, to take the oath required by the Act. Appellee Updegraff, as a citizen and taxpayer, thereupon brought this suit in the District Court of Oklahoma County to enjoin the necessary state officials from paying further compensation to employees who had not subscribed to the oath. The appellants, who were permitted to intervene, attacked the validity of the Act on the grounds, among others, that it was a bill of attainder; an ex post facto law; impaired the obligation of their contracts with the State and violated the Due Process Clause of the Fourteenth Amendment. They also sought a mandatory injunction directing the state officers to pay

Page 186

their salaries regardless of their failure to take the oath. Their objections centered largely on the following clauses of the oath:

'* * * That I am not affiliated directly or indirectly * * * with any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization; * * * that I will take up arms in the defense of the United States in time of War, or National Emergency, if necessary; that within the five (5) years immediately preceding the taking of this oath (or affirmation) I have not been a member of * * * any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public agency of the United States to be a communist front or subversive organization * * *.'

The court upheld the Act and enjoined the state officers from making further salary payments to appellants. The Supreme Court of Oklahoma affirmed, sub nom. Board of Regents v. Updegraff, 1951, 205 Ok. 301, 237 P.2d 131, 135.2 We noted probable jurisdiction because of the public importance of this type of legislation and the recurring serious constitutional questions which it presents.

Page 187

The District Court of Oklahoma County in holding the Act valid concluded that the appellants were compelled to take the oath as written; that the appellants 'and each of them, did not take and subscribe to the oath as provided in Section 2 of the Act and wilfully refused to take that oath and by reason thereof the Board of Regents is enjoined from paying them, and their employment is terminated.' In affirming, the Supreme Court of Oklahoma held that the phrase of the oath 'any foreign political agency, party, organization or Government, or with any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized agency of the United States to be a communist front or subversive organization' actually 'refers to a list or lists of such organizations in existence at the time of the passage of the act which had been prepared by the Attorney General (of the United States) under Governmental directive. Such list or lists are in effect made a part of the oath by reference.' On this point the opinion continues: 'There is no requirement in the act that an oath be taken of non-membership in organizations not on the list of the Attorney General of the United States at the time of the passage of this act.'

We read this part of the highest state court's decision as limiting the organizations proscribed by the Act to those designated on the list or lists of the Attorney General which had been issued prior to the effective date of the Act. Although this interpretation discarded clear language of the oath as surplusage, the court denied the appellants' petition for rehearing which included a plea that refusal of the court to permit appellants to take the oath as so interpreted was violative of due process.

The purpose of the Act, we are told, 'was to make loyalty a qualification to hold public office or be employed by the State.' 205 Okl. at page 305, 237 P.2d at page 136.

Page 188

During periods of international stress, the extent of legislation with such objectives accentuates our traditional concern about the relation of government to the individual in a free society. The perennial problem of defining that relationship becomes acute when disloyalty is screened by ideological patterns and techniques of disguise that make it difficult to identify. Democratic government is not powerless to meet this threat, but it must do so without infringing the freedoms that are the ultimate values of all democratic living. In the adoption of such means as it believes effective, the legislature is therefore confronted with the problem of balancing its interest in national security with the often conflicting constitutional rights of the individual.

In a series of cases coming here in recent years, we have had occasion to consider legislation aimed at safeguarding the public service from disloyalty. Garner v. Board of Public Works, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380; Gerende v. Board of Supervisors, 1951, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. It is in the context of these decisions that we determine the validity of the oath before us.

Garner involved a Los Angeles ordinance requiring all city employees to swear that they did not advocate the overthrow of the government by unlawful means or belong to organizations with such objectives. The ordinance implemented an earlier charter amendment which disqualified from municipal employment all persons unable to take such an oath truthfully. One of the attacks made on the oath in that case was that it violated due process because its negation was not limited to organizations known by the employee to be within the proscribed class. This argument was rejected because we felt justified in assuming that scienter was implicit in each clause of the oath.

Page 189

Alder also indicated the importance of determining whether a rule of exclusion based on association applies to innocent as well as knowing activity. New York had sought to bar from employment in the public schools persons who advocate, or belong to organizations which advocate, the overthrow of the government by unlawful means. The Feinberg Law directed the New York Board of Regents to make a listing, after notice and hearing, of organizations of the type described. Under § 3022 of the statute, Education Law, McK.Consol.Laws, c. 16, the Regents provided by regulation that membership in a listed organization should be prima facie evidence of disqualification for office in the New York public schools. In upholding this legislation, we expressly noted that the New York courts had construed the statute to require knowledge of organizational purpose before the regulation could apply. 342 U.S. at page 494, 72 S.Ct. at pae 385. Cf. American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 413, 70 S.Ct. 674, 94 L.Ed. 925.

The oath in Gerende was required of candidates for public office who sought places on a Maryland ballot. On oral argument in that case, the Maryland Attorney General assured us that he would advise the proper state authorities to accept, as complying with the statute, an affidavit stating that the affiant was not engaged in an attempt to overthrow the government by force or violence or knowingly a member of an organization engaged in such an attempt. Because we read an earlier Maryland Court of Appeals' decision as interpreting the statute so that such an affidavit would satisfy its requirements, we affirmed on the basis of this assurance.

We assumed in Garner, that if ourinterpretation of the oath as containing an implicit scienter requirement was correct, Los Angeles would give the petitioners who had refused to sign the oath an opportunity to take it as interpreted and resume their employment. But here, with our decision in Garner before it, the Oklahoma Su-

Page 190

preme Court refused to extend to appellants an opportunity to take the oath. In addition, a petition for rehearing which urged that failure to permit appellants to take the oath as interpreted deprived them of due process was denied. This must be viewed as a holding that knowledge is not a factor under the Oklahoma statute. We are thus brought to the question touched on in Garner, Adler, and Gerende: whether the due process clause permits a state in attempting to bar disloyal individuals from its employ to exclude persons solely on the basis of organizational membership, regardless of their knowledge concerning the organizations to which they had belonged. For, under the statute before us, the fact of membership alone disqualifies. If the rule be expressed as a presumption of disloyalty, it is a conclusive one.

But membership may be innocent. A state servant may have joined a proscribed organization unaware of its activities and purposes. In recent...

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634 practice notes
  • McKnight v. Southeastern Pennsylvania Transp. Authority, No. 77-2563
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 29, 1978
    ...outlined and analyzed in Professor Tribe's recent treatise, American Constitutional Law 501-39 (1978). 11 See also Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United States v. Lovett, 328 U.S. 303, 316-17, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); Peters v. Hobby, ......
  • Mancuso v. Taft, Civ. A. No. 4751.
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    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...in a series of decisions following Adler Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. See Wieman v. Updegraff, 344 U.S. 183 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551 76 S.Ct. 637, 100 L.Ed. 692; Cramp v. Board of Public Instru......
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...from the primary grades to the university--as the priests of our democracy is therefore not to indulge in hyperbole." Wieman v. Updegraff, 344 U.S. 183, 196, 73 S.Ct. 215, 221, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). The accommodation of these sometimes confli......
  • Sherbert v. Verner, No. 526
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    • United States Supreme Court
    • June 17, 1963
    ...or privilege.6 American Page 405 Communications Ass'n v. Douds, 339 U.S. 382, 390, 70 S.Ct. 674, 679, 94 L.Ed. 925; Wieman v. Updegraff, 344 U.S. 183, 191—192, 73 S.Ct. 215, 218—219, 97 L.Ed. 216; Hannegan v. Esquire, Inc., 327 U.S. 146, 155—156, 66 S.Ct. 456, 461, 90 L.Ed. 586. For example......
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628 cases
  • McKnight v. Southeastern Pennsylvania Transp. Authority, No. 77-2563
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 29, 1978
    ...outlined and analyzed in Professor Tribe's recent treatise, American Constitutional Law 501-39 (1978). 11 See also Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952); United States v. Lovett, 328 U.S. 303, 316-17, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); Peters v. Hobby, ......
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...in a series of decisions following Adler Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. See Wieman v. Updegraff, 344 U.S. 183 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551 76 S.Ct. 637, 100 L.Ed. 692; Cramp v. Board of Public Instru......
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...from the primary grades to the university--as the priests of our democracy is therefore not to indulge in hyperbole." Wieman v. Updegraff, 344 U.S. 183, 196, 73 S.Ct. 215, 221, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). The accommodation of these sometimes confli......
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    • United States Supreme Court
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    ...or privilege.6 American Page 405 Communications Ass'n v. Douds, 339 U.S. 382, 390, 70 S.Ct. 674, 679, 94 L.Ed. 925; Wieman v. Updegraff, 344 U.S. 183, 191—192, 73 S.Ct. 215, 218—219, 97 L.Ed. 216; Hannegan v. Esquire, Inc., 327 U.S. 146, 155—156, 66 S.Ct. 456, 461, 90 L.Ed. 586. For example......
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6 books & journal articles
  • The Fiction of the First Freedom
    • United States
    • Political Research Quarterly Nbr. 6-2, June 1953
    • June 1, 1953
    ...v. Board of Supervisors of Elections, 341 U.S. 56 (1951); Garner v. Board of Public Works, 341 U.S. 716 (1951); Wieman v. Updegraff, 73 S. Ct. 215 Re Jackson, 96 U.S. 727 (1878); Re Rapier, 143 U.S. 110 (1892); Horner v. United States, 143 U.S. 207 (1892); Lewis Publishing Company v. Morgan......
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    • Political Research Quarterly Nbr. 12-2, June 1959
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    ...may most passionately assert.&dquo; sl 58 Slochower v. Board, 350 U.S. 551, 555 (1956). (Italics supplied.) 59 Wieman v. Updegraff, 344 U.S. 183, 191-192 (1952). (Italics Korematsu v. United States, supra note 4, at 216 (1944). 61 American Communication Association v. Douds, supra note 55, ......
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    ...study to show that changes in policy affecting abortion timelines did have a chilling effect on behavior). (12.) Wieman v. Updegraff, 344 U.S. 183, 195 (13.) Id. at 183. (14.) Id. at 195 (Frankfurter, J., concurring). (15.) Id. at 195-96 (Frankfurter, J., concurring). (16.) Gibson v. Fla. L......
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