SHELTON v. TUCKER

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Argument of Robert L. Carter

Chief Justice Earl Warren: Number 14, B. T. Shelton et al., Appellants, versus Everett Tucker Jr., etcetera.

Mr. Carter.

Mr. Robert L. Carter: If the Court pleases, appeal involves the constitutional validity of an Arkansas statute, which requires all schoolteachers in the institution -- public institutions of higher learning and all public school teachers and supervisor and personnel in the public schools, to file an affidavit listing all of their organizational connections as a prerequisite to -- for employment.

The statute is number Act 10 and it was passed at a -- at the second extraordinary session of the General Assembly of Arkansas in December of 1958.

At that time, the session was called by the Governor to deal with the problems of -- which had come about by virtue of this Court's decision in the school segregation cases and specifically by virtue of the decision of the Court of Appeals in Aaron versus Cooper.

The appellants say that the statute is unconstitutional for two reasons.

One, we -- we say that this is a broad proscription of the freedom of association of the schoolteacher with the inevitable consequence that it is of destructive of academic freedom in the public institutions in Arkansas.

And we say secondly that this is in effect, race legislation, because the purpose and -- and intent of the Act, by virtue of it on -- actually on its face and by virtue of it in the time in which it was passed, was intended to prohibit and frustrate advocacy of school integration in Arkansas and the freedom of the teachers to in -- involve themselves in this kind of activity.

Justice John M. Harlan: You say on its face, what are you referring to in the statute that the --

Mr. Robert L. Carter: On -- the statute was set out, Mr. Justice Harlan, on the beginning at page 3 of -- of our -- the brief of the appellants.

If you will read Section 7 --

Justice John M. Harlan: Seven?

Mr. Robert L. Carter: Seven, which is at the bottom of page 5, it is hereby determined that the decision of the Supreme Court in schools segregation cases require a solution of a great variety of local problems etcetera.

We think that that and the call in the address that the -- of the Government, indicates and a -- a purpose to proscribe integration -- an advocacy of integration of the public schools.

Justice Felix Frankfurter: Can you derive that just by reading that Section?

Mr. Robert L. Carter: Well, no, sir.

Justice Felix Frankfurter: Mr. Carter, would you disagree as an abstract session with the first sentence of that Section?

No stop at -- at the bottom -- of comma.

Mr. Robert L. Carter: You mean the -- the --

Justice Felix Frankfurter: “It's hereby determined that the decisions require solution of a great variety of local public school problems of considerable complexity immediately and which involve the health, safety and general welfare,” suppose -- would you disagree with that statement?

Mr. Robert L. Carter: No, I wouldn't, Mr. Justice Frankfurter, I wouldn't disagree with the statement but I -- the statement itself of course, is -- it gives us no help -- you -- in terms of what?

Justice Felix Frankfurter: But I thought, on the face is exactly what it means that you take a statement by itself.

Mr. Robert L. Carter: Well and that -- as far as -- as we're concerned in terms of giving meaning to what this or what this -- the statement intent -- what the statement was meant to -- to cover.

We think that the -- the purpose of the special session, the Governor's statement which illuminated the session --

Justice Felix Frankfurter: Then you go --

Mr. Robert L. Carter: Reasonable.

Justice Felix Frankfurter: Then you go outside of the case.

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: This is -- this isn't just the way of quibbling, you may be in right in what you've last said, but I wouldn't say that on its face, as I understand, on its face means if you just need it, it compels that -- that meaning.

Mr. Robert L. Carter: Well, our -- well, our -- our view is that the statute is void on its face without regard to its racial implications and -- and with regard to that, I think that -- or we will try go out the position.

We also feel that the statutes as a racial disarm.

Justice Felix Frankfurter: That I understand.

You mean that it require any teacher in any educational institution to give a list of the clubs, associations, corporate institutions of which he is a member which is what the statute does on its face.

That on it -- that is impermissible under the Constitution.

Mr. Robert L. Carter: Yes sir, that's our position.

Justice Felix Frankfurter: That I understand.

Mr. Robert L. Carter: That's our pro -- proposition.

And I would -- now --

Chief Justice Earl Warren: But you don't rely -- and do you rely on that section alone that you have read or do you rely on the other -- on -- on the real body of the Act.

Mr. Robert L. Carter: That -- Mr. Chief Justice, we were -- on that for the broad general proposition which I've stated --

Chief Justice Earl Warren: Well, let's --

Mr. Robert L. Carter: -- in our first attack.

Chief Justice Earl Warren: Let's don't get too broad and general.

Let's get down the case now.

Mr. Robert L. Carter: Well if the --

Chief Justice Earl Warren: You were asked the question what do you rely on and all you cited to us was -- was that section.

Now, if there's anything else in the Act, I suppose you read it to us.

Mr. Robert L. Carter: I would.

I was attempting to cite that section for was to the -- was to the effect that I -- that I was arguing that this was racial legislation.

What we had in terms of the statute -- our attack on the statute as being a prohibition on the -- of the freedom of assembly of the teacher.

We rely on the terms of the statute itself, not only of the Section 7, but all of the sections because of what it -- what it -- it requires the teacher to do.

This is the -- this is our portion in terms of that and we feel that the statute is unconstitutional on its face because of the fact that it -- it does -- does take away from the teacher the right and the freedom to associate without, we say, any -- any relationship or meaning, any of the yardsticks to this Court has held or required in statutes of this kind.

The -- the statute, Section 1 of the statute at page 3, says that its purposes are to assist in the administration and financing of the school and to -- and this -- the legislature says that it's going to be beneficial to the school systems to require these affidavits.

Now, the -- the statute, as set out in Section 2, indicates that every teacher and superintendent is going to have to give these affidavits.

There is no indication of what kind of organizations are -- are to be listed, that all -- all organizations and not only membership in the organization, but any organization which the teacher has paid -- which he regularly play -- pays dues or makes the contribution, all of these are required to be listed.

On page 4, we've -- the statute sets out the kind of -- of affidavit which is required.

Now, in Arkansas, teacher contracts are entered on a -- on an annual basis.

There is no tenure in the -- in Arkansas as far as we know, except for the fact that if -- if your -- if you -- if a teacher is not given a notification within the specified period, then she's entitled to -- to be retained for the following year.

Justice Felix Frankfurter: This -- this statute applies to every public educational institution in the state, does it not?

Mr. Robert L. Carter: Yes, it does.

Justice Felix Frankfurter: That includes the University of Arkansas?

Mr. Robert L. Carter: That's right sir.

Justice Felix Frankfurter: Do I understand from what you last said or a minute ago said that the professors or full professors of the University of Arkansas has merely an annual tenure?

Mr. Robert L. Carter: Well, I -- as I understand it, Your Honor, the contracts are entered on a yearly basis.

Justice Felix Frankfurter: But has that applied to the University, I'm just curious about it.

Mr. Robert L. Carter: As far as I understand it, it does apply to the --

Justice Felix Frankfurter: Well, then --

Mr. Robert L. Carter: -- to the University of Arkansas there -- there are, in terms of the colleges and institutions, there maybe some rules and regulations which they have but they are required to enter a contract with the teacher, it is my understanding, every year.

Justice Felix Frankfurter: What other institutions of higher -- higher education are there not enclosed inside the University?

Mr. Robert L. Carter: Well, the -- the only other one I know of is this -- the Negro college, the college for Negroes which, I think, is the Arkansas Agricultural Mechanical and Normal College and that's the only corporate institution that I know of.

There may be others, but I'm not aware -- aware of it.

Justice Felix Frankfurter: How large are the faculty?

Did you happen to know how large the faculty they have there?

Mr. Robert L. Carter: I know, I do not --

Justice Felix Frankfurter: In University of Arkansas, there must be considerable faculty.

Mr. Robert L. Carter: Well, this is a -- as I understand the -- the college for Negroes is a -- is a big institution.

Now, the statute does require that this be listed and that therefore, each year when the teacher comes to have a contract for employment, this kind of affidavit has to be filed.

Now, the appellants here are a teacher, the named appellant here is a teacher in the public schools, he's taught in the public schools in Little Rock, Arkansas for a period of some 25 years.

There's no dispute about the fact that his work was satisfactory.

There was no complaint about his work in terms of his fitness and suitability.

There's no controversy about the fact he has filed an affidavit that he is not a member of any organization which advocates the overthrow of the Government by force or violence.

He has indicated in his -- in the -- in the affidavit to the complaint that he is a member of the National Association for the Advancement of Colored People and that his purposes in joining that organization was to improve the Negro status in general.

He has refused to file the affidavit required on the grounds, as alleged in the complaint, that this is a violation of his rights and the rights of other teachers to freedom of association.

The other appellant is the -- an Arkansas Teachers Association which is an organization of the Negro teachers in Arkansas.

And they are bringing the action along with the named appellant, Shelton, on behalf of themselves and of all the Negro teachers in the public institutions in Arkansas.

The --

Justice John M. Harlan: This affidavit that he filed, was that a voluntary filing in the sense --

Mr. Robert L. Carter: Well, this was --

Justice John M. Harlan: -- or was it in response to the questions that he was asked?

Mr. Robert L. Carter: This was -- this was -- the affidavit that I'm talking about that Shelton has filed --

Justice John M. Harlan: On that --

Mr. Robert L. Carter: -- was filed in connection with his complaint.

This was filed in --

Justice John M. Harlan: Oh, in connection with his complaint?

Mr. Robert L. Carter: Yes sir, as an exhibit to his complaint.

Justice Tom C. Clark: Perhaps, he didn't file it, didn't he?

Mr. Robert L. Carter: No, sir.

He refused to file an affidavit.

Justice John M. Harlan: I understand you --

Justice Charles E. Whittaker: Mr. Carter, Act 10 was held -- was it (Inaudible)

Mr. Robert L. Carter: Subsequent section, sir.

Justice Charles E. Whittaker: (Inaudible) certain organizations including NAACP?

Mr. Robert L. Carter: Only of the NAACP, I believe.

Justice Charles E. Whittaker: Only of the -- and that Act was held unconstitutional?

Mr. Robert L. Carter: That's right, sir.

Justice Charles E. Whittaker: And that is quite embezzling?

Mr. Robert L. Carter: Yes, sir.

Justice Potter Stewart: Now, that law was not passed to the same -- the same legislative question.

Mr. Robert L. Carter: That was passed with the subsequent session at the -- at the 1959 regular session of the -- of the General Assembly which I think occurred some six months after this session.

Justice Potter Stewart: That law has been held unconstitutional by the District Court --

Mr. Robert L. Carter: Are these by --

Justice Potter Stewart: It was not before the State Supreme Court prior, before us, is that right?

Mr. Robert L. Carter: That's right, sir.

The only --

Justice Charles E. Whittaker: It hasn't been held unconstitutional both by the Eighth Circuit, as I understand it, and also by the Supreme Court of Arkansas.

Mr. Robert L. Carter: No, sir.

It was not an issue in the Supreme Court of Arkansas, because there was no issue with respect to this broad -- as I understand in the next case.

The appellant here was a member of the NAACP and he attacked -- the attack therefore, was made both on the Act 115 and on Act 10.

The court below held that the Act 10 was valid on -- and held that it had -- that they had to look at the two title statutes separately.

They held that Act 115 was unconstitutional and that they declared that the -- this man could not be fired because of his membership in the NAACP.

Now, subsequent to that decision, the appellant continued to refuse to file the affidavit required by Act 10 and he was notified by the school board that because of his refusal that he was not to be employed for the 1959, 1960 school term.

So that he was in fact, fired because of his refusal to sign the -- to fill out the affidavit.

Now, we think that the statute is unconstitutional, Act 10, without regard to the first issue that I was raising.

That is taking it -- viewing the statute as if it were not passed at the second extraordinary session as mere -- as if it had no import at all with respect to race.

We think that the statute is bad, because of the fact that the statute, it seems to us, fails to meet what we regard or what we feel are the yardsticks that this Court has laid down for upholding and validating the statutes of this kind.

As far as those yardsticks are concerned, we think that there are three.

And they are that there must be the statute, if the statute impinges on freedom of speech, that the statute, there must be some compelling justification for it which must be demonstrated.

We think that there's nothing in the history of this legislation or in the record here to show that there was any great need for this statute, any justification for it at all.

The second requirement we believe, is that the statute, if there is an equal statute, that there must be some rational connection between what the statute seeks to achieve and the restriction which is imposed.

Now, we don't believe that there is any connection between assisting in the administration of financing of schools and benefiting schools and the problems caused -- raised by the school segregation cases, any connections between that and the restriction on freedom -- on the freedom of association of the public school teacher.

And even if those measures are met, we think that the statute has failed to meet a third yardstick, which this Court has imposed, and that is that if an impingement on speech is validated, the statute, which validates, must be in such terms that it cannot be utilized to restrict Constitution -- the Constitution exercise of each and other area.

In other words, what we've tried to use, we've used the language of the Court that was used in sometime ago and has not been, as far as we know, used in subsequent recent cases, but the idea was that the statute has to be narrowly drawn and confines of the specific regulation, the specific restriction which is allowable.

Now, we think that on all of these measures, the statute must fall, because what we feel to be the policy of the reason of the court below, is that the court below says that these teachers association, teachers habits, and so forth are relevant to determine the fitness in the school system.

We think, of course, that the school -- the school authorities have the right to investigate the teacher to determine fitness, etcetera. But what we think that the school authorities cannot do is, in order to attempt to do that to restrict the freedom of association of the teacher entirely on the ground that by in this way, they may uncover some evidence which is relevant to fitness.

We think that they are required to make a decision and a declaration as to what association they regard as being relevant to the issue of teacher fitness which they are seeking to do something about.

Spell that out, require the teacher to list those associations, if they are, and then at that point, the statute comes here to be measured -- to be measured by the yardsticks of this Court as to whether, in fact, the associations which had been listed or had been required to be listed are relevant to the issue of fitness.

Now, we think that the reliance on Garner versus the Los Angeles Board and the reliance on the Lerner case and the Beilan case and Adler case on this place.

In the first place, this is not an issue of subversion here at all.

We also believed that -- and because of that, we don't think that they can be in reliance on that and we think that the language in those cases has to be related to the issue of what the Court had in mind or what the Court slurs the State was attempting to do, was that there was some correlation between the question of fitness and the subversion or inquiry about subversion, which the school authorities were attesting.

We don't have that problem here.

That problem is not at all involved in this case in any way.

The other thing is that the argument is made by -- in the appellees' brief that this is -- this statute is not bad because after all, the teacher is not required to be fired.

In other words, it doesn't -- it burdens but it doesn't punish speech.

And we feel that this does not help support the regulation, because of the fact that this Court has held on many occasions from Thomas versus Collins through the cases such as the NAACP versus Alabama and Bates versus Little Rock, that the fact that the restriction does not punish, merely burden speech that this does not keep it from being a violation and infringement of freedom of association.

So that the fact, as we admit, that the school authorities are not required, they are there told that you list this and actually and in the abstract, once the teacher is -- list these organizations and may well be, they argue, that she will not be required.

And maybe membership in the -- in the NAACP or membership in the Urban League or these other kinds of organizations will not require that the teacher be fired and this, of course, is true.

But the point is that the restriction which is bear imposed, we feel, imposes upon the teacher a burden of what this Court has described in Smith versus California as a self-censorship.

And because the inevitable result, we think, is that the teacher being required to list these organizations whatever they are, the tendency is going to be for the teacher to, therefore, involve herself in and be concerned with an organizational activities, only the things that she or he regards as safe or the things that will meet with the approval of her superiors.

Now, this is a kind of a loss of freedom, of a sense of freedom of the teacher, which we think would have or we have argued would have disastrous result on the question of academic freedom.

Justice John M. Harlan: Do you say that the state has got no right to acquire as to any associational relationships of a respective teacher?

Mr. Robert L. Carter: No, sir.

Justice John M. Harlan: Is that your position?

Mr. Robert L. Carter: No, sir.

Justice John M. Harlan: What -- what are the limits that that language requires?

Mr. Robert L. Carter: We think that the limits are -- the limits have to be that those that are related to fitness, to her suitability and trustworthiness, I think those are the terms that the Court has used in several cases in the public schools.

Justice John M. Harlan: Now, how can you determine in advance sort of a particular associational relationship is or is not relevant to fitness?

Mr. Robert L. Carter: Well, then our theory on that, Mr. Justice Harlan, is that the State is in no position to determine in advance.

It has no reason to restrict it and impinge upon the association.

We think that the State cannot say that you've got to make a -- make an inquiry to all of the association relationships on the grounds that maybe they will find one or two if they look through them that may be related to fitness.

We think that they have to spell it out and say that these various organizations are related to fitness and attempt to restrict them.

Otherwise, we think that the yardsticks of the Court has drawn with respect to permissible limits on the freedom of association would be barred.

Justice John M. Harlan: In other words, what you're saying is the statute is too broad.

Mr. Robert L. Carter: That's right.

That's one of our --

Justice Felix Frankfurter: All of the statutes are restricted to inquiry into membership or association with any organization that concerns itself on purpose of using of a more or less, meeting the standard -- concerned itself for education.

Do you object to that?

Would that be too vague?

Mr. Robert L. Carter: I -- what I would -- if it concerns -- concerning itself with education, I would think that -- let me put it this way, Mr. Justice Frankfurter.

I'm -- I'm not trying to avoid the question but I would think that that statute would be closer.

It may well, in terms of the vagueness, be something that -- looking at it, we've -- I might not be able to go all the way, but it would be closer to what this Court has laid down as the necessary limits.

I would think that that certainly, it could be argued that an organization concerning itself with education have some relevance to the question of the teacher's fitness in the public school.

I don't know what these organizations follow.

Justice Felix Frankfurter: Suppose it said -- suppose my statute would say, "predominantly concerned with education."

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: -- because all sorts of organizations -- you have, indeed, concerns with self-education.

Mr. Robert L. Carter: That's right.

Justice Felix Frankfurter: League of Women Voters concerns itself with education.

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: NAACP concerns itself with education.

Mr. Robert L. Carter: Yes sir.

Justice Felix Frankfurter: All the brotherhood -- Railroad Brotherhoods concerns themselves with education.

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: Now, couldn't it find out whether their members -- suppose they have oral interviews -- suppose they have oral interviews to be inversed to feel a -- area about to which I'm more acquainted with which I'm more acquainted than other, and you think of engaging a professor in history, you asked him, "What have you written? Under who did you study?

Where did you get your degree?

What are your interests and what association?

Can't you ask him to what association he belongs?

Mr. Robert L. Carter: Well, I've -- I think that if you are interviewing -- interviewing them, this man in this kind of context in which you are asking, where do you study?

Where did you get any degree and so forth?

It would seem to me that the -- asking what his associations are, that at that point, you are narrowing your inquiry to association and relationships that are relevant to the issue which is before you at this question as to whether this man is -- has the qualification which you feel desirable in your school system.

Justice Felix Frankfurter: But do you think -- you wouldn't make a difference, would you, between what you've been asked on the basis on which you refused employment?

Mr. Robert L. Carter: No, sir.

Justice Felix Frankfurter: Orally, face to face or to ask on paper.

Mr. Robert L. Carter: No, sir, I would not.

Justice Felix Frankfurter: Would you ask him, if he's been in the war, whether he's a member of the Legion?

Then he says, "No, none of your business."

Mr. Robert L. Carter: Well, I think that -- I would take the position that that kind of inquiry is outside of the -- outside of the competence and the power of the State, because it seems to me that it has no right that -- what he does and what associational relationships he has in terms of employment in the school systems, it seems to me, actively related to the issue of who's with Mr. teacher, and I thought of --

Justice Felix Frankfurter: Will you think if I hire person to teach history or economic or sociology or psychology, and I ask him, "Do you belong to the Legion?"

I can't say -- I am asking you, because I want to get your attitude toward an organization like the Legion.

Do you think that's outside of -- what I would think might bear on the kind of a brain he has or what he's thinking about?

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: -- or what he thinks is relevant in the forces -- in the non-governmental forces that make for American life?

Mr. Robert L. Carter: Well, I would think that that would be outside of that.

Justice Felix Frankfurter: Why?

Why isn't that relevant, what I think?

If he says, "I think the Legion is (Inaudible), the opposite, why isn't that relevant in what kind of a person he is?

Mr. Robert L. Carter: ell, it seems to me if that --

Justice Felix Frankfurter: -- or take the League of Women Voters, and let's try, is this a dangerous time in which to bring into question anything concerned with the flags are I think in League of Women Voters?

Mr. Robert L. Carter: Well -- well, we'll let -- we'll let --

Justice Felix Frankfurter: Why isn't that relevant --

Mr. Robert L. Carter: Well, in --

Justice Felix Frankfurter: -- as to the function of private organizations and how they pursue their pressures of poor legislation --

Mr. Robert L. Carter: Well, it seems to me --

Justice Felix Frankfurter: Why isn't that relevant as to what kind of view he has in teaching of the social courses of America?

Why isn't that relevant?

Mr. Robert L. Carter: Well, it seems to me that if you -- if you have this -- if you'll make the inquiry about the League of Women Voters, if the Court pleases, what you -- excuse me.

What you are you are doing when you make this kind of inquiry, it seems to me that you are, at that point, making a restriction and a judgment on -- in respect to the teacher based upon the exercise of a right of freedom of association, and therefore --

Justice Felix Frankfurter: Well, that -- if I do, then of course it's unconstitutional but we're here to discuss whether I do.

Mr. Robert L. Carter: Well, I think that -- I think for example that the reason I am -- I had difficulty when you list organizations is the fact that it seems to me that there maybe organizations.

I don't -- I'll be frank with you, I just don't know of what organizations, but the fact that a man is a member of the NAACP or the League of Women Voters or so forth and so on or believes in them, what organization that has in terms of his relevance to teach, but --

Justice Felix Frankfurter: It has relevance --

Mr. Robert L. Carter: -- it may well --

Justice Felix Frankfurter: It has relevance to his outlook on problems with which is a scholar and a teacher is concerned.

Mr. Robert L. Carter: Well, then let me put it this way, that if --

Justice Felix Frankfurter: He can have any view he pleases.

I am not preventing him from having views, but isn't an institution entitled where the man has an irresponsible view about the right of association.

Suppose he says, I think it's wrong for veterans to club together.

It's wrong for women to do thus and so.

Don't you think that's relevant to what a man does in a classroom?

Mr. Robert L. Carter: Well, when he -- what he thinks about and what he says in terms of whether it's wrong or not, it seems to me, it doesn't have any -- you're not talking in terms of his thought processes that he has expressed.

Justice Felix Frankfurter: Well, that --

Mr. Robert L. Carter: Not with respect to --

Justice Felix Frankfurter: Don't you suppose that teachers' thought processes have some relation to whether I should -- whether I should hire him as a teacher?

Mr. Robert L. Carter: Yes, that's right.

But I think that when you start listing specific organizations that you take this out of this kind of -- this kind of statute that we have here.

Justice Felix Frankfurter: Now let me put you another case.

That recently as this Saturday, I received in the mail with considerable postage caused from the sender of fixed thing that consisted of reprinting of the Protocols of the Elders of Zion, you know what that is, don't you?

Mr. Robert L. Carter: Yes, sir.

Justice Felix Frankfurter: Well now, had I asked the fellow, don't teach history or sociology, what do you think of the Protocols of the Elders of Zion as a doctrine, and you'd say, well, you're now searching my thought processes.

Mr. Robert L. Carter: Well, if you asked a man, for example, if you asked a man, what he thinks of the NAACP, what he thinks of the League of Women Voters.

Justice Felix Frankfurter: Can I ask him that?

Mr. Robert L. Carter: If you ask him that, I don't' think that you're -- you are therefore asking him whether he belongs to the organization or not.

Justice Felix Frankfurter: I did ask -- I didn't come to that.

I wanted to ask whether I can ask him those questions.

Mr. Robert L. Carter: I would think so, yes.

I would think that if -- on the basis of that you feel that some information in regard to that might be helpful in your determination, yes.

I think that you'd be entitled to asking him.

Justice Felix Frankfurter: Well, do you think it is in credit that you think I'd be an odd stick to ask those questions?

Mr. Robert L. Carter: Well --

Justice Felix Frankfurter: Or would you think they were relevant, not as an exception of foolish inquiry?

Mr. Robert L. Carter: Well, my difficulty, as I say, is that --

Justice Felix Frankfurter: I'm not saying that's this case, what I'm trying to search what the limits of this problem are, because these are very complicated, as you know, very complicated and subtle questions.

Mr. Robert L. Carter: Well, I would feel that to ask a man in terms of what his views were on various problems in the world today as evidence or in the society's evidence by the attitudes of various organizations, I would think that that would be legitimate but this --

Justice Felix Frankfurter: But there are a lot of people of whom I couldn't ask that without their right to say, "It's none of your business."

Isn't that true?

Mr. Robert L. Carter: That's true.

That's right.

But what I have here and that this is the point that I -- here, if the Court -- I think that even the Supreme Court of Arkansas or the court below said that what the -- what the petitioner or the appellants were contending was that the State had to ask 150 questions instead of one, and I think that this is really the difference between this case and the case that -- the situation that you were mentioning.

It does seem to me that there is an important difference here that if a state feels that some of these things are relevant to the issue of teacher fitness, then it seems to me that they have to ask the 150 questions rather than ask the one question, which is going to bring into play we think is a breach of the teachers' -- total breach of the teachers' association of freedom.

I feel that this case, if this statute is upheld, what it really amounts to is that the teacher is, by virtue of her teaching, is being deprived completely of any right to freedom of association.

Justice Potter Stewart: Mr. Carter, because of the lack of tenure in Arkansas, which apparently is true, are these teachers all in the same status as if they were new applicants for jobs each year?

Mr. Robert L. Carter: Well, as a practical matter, I would -- I would hardly think so, Mr. Justice -- Mr. Justice Stewart.

I think that what happens is that they have -- the contract has to be renewed each year.

There are no limits in terms of, as far as I know, in terms of reasons that the State can have.

If the teachers taught there for 50 years, the State may send them a notice within the statutory timeline and say we're not going to employ for the next year.

Justice Felix Frankfurter: Well, for no reason at all?

Mr. Robert L. Carter: Yes, sir.

As far as I -- the case cited by the court below in its opinion, it seems to -- in the opinion below which is -- we've set out in the -- in the footnote as to the statement of jurisdiction, seems to stand for that proposition.

I can find it on page -- on page 31 of the stating of jurisdiction in footnote 3.

I don't -- the statute -- that this is a kind of teacher contract employment, which I think is fairly common in some of the states.

And as a matter of fact, I don't think it operates that way, because I think if a teacher -- teacher has taught for any length of time, that -- and has taught satisfactorily basis, the probability that you've realized or he realized, they want to stay in school system, they will remain.

But insofar as the bare legal proposition is concerned, this would be permissible.

Justice Potter Stewart: Would you thing there might then be a difference between what the State or the public school system could ask a brand-new applicant for a job about whom the system would know nothing, that there might be a difference between what the State could constitutionally ask from such an applicant, and/or the State could constitutionally ask of its existing teachers about whom it presumably knows a good deal insofar as their teaching ability goes and their experiences?

Mr. Robert L. Carter: I -- I don't see, I'm unable to see the difference, and I think that the inquiry which the -- if the inquiry, particularly in this kind of situation, if, as I believe that the inquiry has to be limited to the issue of teacher fitness and suitability to teacher.

This is where I think the limits are.

Then it seems to me that it may -- that the kinds of questions that can be asked, we should be the same both for the old teacher and the new teacher, because they maybe more probing and maybe some of these things you might be able to find more about.

But it seems to me if it -- within these limitations that they would be substantially the same.

Justice Potter Stewart: Well, I'm not assuming you have a new teacher, I'm assuming you have somebody who's never taught, who has never had implication to experience academic freedom.

He just comes and applies and he wants a job in the Arkansas public school system.

Do you think Arkansas would say, "Well, we don't know anything about you, would you please list the -- your various vital statistics including the organizations to which you would belong?"

Might it not be relevant if he says he's a member of the, I don't know, with the bartender's union and so on, and just as his educational qualifications would be relevant.

Mr. Robert L. Carter: Well --

Justice Potter Stewart: For a -- for a new person whom this school system knew nothing.

Mr. Robert L. Carter: Well, I come back to the same position, which I was entitled to take in the reply to Mr. Justice Frankfurter.

It seems to me that a state can't serve that we -- well, we want to know all about you.

I mean I feel they can say, "We want to know all about you, insofar as all about you has relevance to the issue of teaching in the schools."

And the State can't say that, "This is difficult.

We don't' know, there are a whole a lot of things that we may like to find out, and therefore, we want you to list everything."

I think the State has to, itself, make a decision as to what it regards as being relevant.

And in this regard, I would make no distinction between the old teacher and the new, because it seems to me that what would have to happen is that the State therefore has to ask the specific questions, which it thinks relates to the issues which it wants to bring out.

Otherwise, it would rather as far as I'm concerned, this, to me, is the rise of the reasoning below.

I would -- I, of course, don't come here saying that they can't ask anything, that they are allowed to ask questions and impinge upon the teachers' freedom of association other than the issue of their loyalty and so forth.

Of course there's a number of things which determine fitness, but I think that the State has to spell that out as to what it thinks is related to.

Otherwise, it seems to me that you -- your whole concept of the right of freedom of association, which the Court has laid down, goes out of the window.

This is our position.

Justice Felix Frankfurter: Mr. Carter, I don't want to take too much of your time that I think I did already, but I want to pursue the inquiry of my brother Stewart regarding the implications of this one-year tenure in Arkansas.

Suppose the State -- suppose the educational authority, forgetting this statute.

Suppose the statute haven't been on the books or ceased to be on the books, asked just as a voluntary act on the part of teachers, if they wish of their own free will, to give a list of their associations, just like this, with no legislative compulsion, and some do and some don't.

At the year, suppose the educational authorities do not renew -- do not rehire, if I may use that term about teachers, reemploy teachers, and they do not reemploy all those who did not make these voluntary disclosures.

As you understand the law of Arkansas that stands, is there any redress for that?

Mr. Robert L. Carter: Well, under the law of Arkansas, as I understand it.

Well, I -- and I think the law of Arkansas has to be embellished with the law of due process, which has been set down by this Court.

Now, under the law of Arkansas, as I understand it, if those teachers are -- their contracts are not renewed without any reason, then the teacher would have no redress except, it seems to me, that the due process question would arise if the teachers can show that their failure to renew was based upon their refusal to issue -- I mean to sign this affidavit.

Then, I think no matter what the law of Arkansas is that this would -- this case would at least come here as a federal due process question which would have to be determined on the basis of decisions of this Court.

Justice Felix Frankfurter: Some arbitrary exercise had the right of the legislature of the teaching -- of the Board of Education whatever they're called, not to renew, is that it?

Mr. Robert L. Carter: That's right.

Now, if they gave no reasons, then it seems to me that -- and they could not prove that there was -- there were any invalid reasons and I think that the law of Arkansas, as it is, is that there's no redress.

But I think as I -- I don't remember the -- right off hand the cases, but it seems to me that last term, there were several cases of this kind.

And the fact that that the Government has the power but -- to fail to renew -- but dismisses or refuses to renew for an unconstitutional reason, then it's -- then I think that as far as I understand the law that there is redress.

Now, I think that we have set out in our brief, our reasons and the correlation between what we regard the -- this freedom of association of the schoolteacher and academic freedom.

We think that this is very clear and that if you can't have a free teacher, you aren't going to be able to have a teacher who is free enough to instill any feeling of freedom of thought and so forth in the classroom.

The -- on the question of this being raised legislation --

Justice William J. Brennan: Before you get to that Mr. Carter, do the arguments you've just made draw any support to the fact that the answers required are not as to immediate memberships but as to memberships within five years, last five years or that kind?

Mr. Robert L. Carter: Well, I think on that that I would have to -- I think that I would be foreclosed for making that kind of argument by virtue of the decisions in Garner versus the Board of Public Works.

I think that the Court has said the past conduct maybe irrelevant to fitness and this is -- we're not making this argument at all.

Justice William J. Brennan: All right.

Mr. Robert L. Carter: Now, on the final point, if I may hurriedly, we think that if -- that by virtue of the fact that this was passed, as I indicated, at the second extraordinary session and it was passed that this is the -- with a package of legislation, which was school closing and intended to deal with the whole question of school segregation.

But actually, it was intended to affect the rights of teachers to participate in group organizations advocating integration.

And on this basis, we feel that this statute would be bad for the -- under the principle of the NAACP versus Alabama and Bates versus Little Rock.

Chief Justice Earl Warren: Mr. Friday.

Argument of Herschel H. Friday Jr.

Mr. Herschel H. Friday Jr.: Mr. Chief Justice and may it please the Court.

I represent the Little Rock Special School District, the board of directors thereof, and the superintendent.

We were parties to this proceeding because Mr. Shelton, the plaintiff, was an employee of the Little Rock School District.

He had been an employee for 25 years prior to this time.

As Mr. Carter has accurately stated, there is nothing in the record to indicate any disqualification on his part by virtue of incompetency or any other reason than the fact that Mr. Shelton refused to file the affidavit required by Act 10.

The School District, under those circumstances, later after the conclusion of the trial, stipulated so there would be no question in this record that due to his failure, his contract was not renewed.

That stipulation came in later.

It was made necessary here because of the proceedings that developed and so that there would be no question and we had no disposition to let the matter go off on any -- a procedural point one way or the other.

Little Rock School District takes no issue with reference to the wisdom of this legislation.

We do not think the wisdom of it, one way or the other, is important.

I believe Mr. Carter stated here, there had been no showing in justification for the Act of any necessity for it.

Certainly, the record was not developed in that particular but we would state our position that this is immaterial and is not properly before the Court.

There's no necessity for such a showing, if the legislature has acted properly within the scope of its power or jurisdiction, then it is not a question to challenge whether it -- the motives and what not that it acted on it or the wisdom that it used in that regard.

Now we would state the position of the School District in the case.

I think I can state it fairly simply.

It may not turn out to be such a simple situation. Certainly, freedom of speech, freedom of association, freedom of assembly are protected and have been so held by this Court by the First Amendment, which is read into the Fourteenth Amendment as certainly being of such a fundamental nature as being part of due process of the Fourteenth Amendment and therefore applicable as to state action.

Now, there is no question about that, the decisions leave no doubt that that's there.

I have a little trouble with it here.

The test seems to have been that the particular legislation that's challenged amounts to a substantial abridgement of these rights that are there.

We have pointed out that while these rights certainly exist, there are no sanctions in this Act, unlike the usual situation of the cases that come up when you get into subversive activities or disloyalty or what not.

This Act, if you list any number of organizations or if you list the Communist Party, the Act does not say that you're discharged for that reason, the Act simply says, "You will file the affidavit and give the information."

Now, of course, the sanction is there that if the affidavit is not filed, then the school districts and those others under the Act, the institutions of higher learning, there are several incidentally in our Arkansas.

The University of Arkansas is the largest with some 5,000 or 6,000 students.

There are several other state-supported colleges in the State of Arkansas.

Justice Felix Frankfurter: I was just about going to ask that I --

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Felix Frankfurter: -- sent for the membership of institutions in the Association of American University Professors and I find there are five of them.

The Arkansas Agricultural Mechanical College, Arkansas Polytechnic College, (Inaudible)

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Felix Frankfurter: The Arkansas State College.

What is that Mr. Friday?

Mr. Herschel H. Friday Jr.: Arkansas State College is at Jonesboro.

It -- most of them, I am not sure, most of them would cover the arts courses, probably not -- other than the University, none of them haven't brought a curricular to be of the university class.

Justice Felix Frankfurter: And as the Arkansas State Teachers College.

Mr. Herschel H. Friday Jr.: That's primarily a teachers college and is at Conway.

Justice Felix Frankfurter: And so that there five that are members to this --

Mr. Herschel H. Friday Jr.: Yes.

Justice Felix Frankfurter: -- University Professors Association.

Mr. Herschel H. Friday Jr.: I -- I believe five would cover it.

There's a one at Monticello, one at Magnolia and so forth.

Yes, sir.

Justice Felix Frankfurter: They are all state -- wholly state supported?

Mr. Herschel H. Friday Jr.: Yes, sir.

Other than their cash funds, they have student fees, certain student fees and what not, but primarily, they're called state-supported institutions of higher learning.

Yes, sir.

Justice William J. Brennan: Well, if that's the case then Mr. Friday that each professor of the university also must annually sign this affidavit?

Mr. Herschel H. Friday Jr.: Yes, sir.

That's my understanding.

On the tenure question, I might address just a moment on that.

I could give the Court my understanding of it.

I have substantially agreed with Mr. Carter's analysis that we have a statute in the State that provides that unless notice is given within a specified period at the time of this litigation, it provided, that in the event a teacher was under contract with a school district and notice was not given by the parties, one way or the other, within a 10-day period after that the particular school term, that contract was automatically renewed for one more year.

So in that sense, if no notice was given, you had tenure for a year.

Now, there are good many school districts, and I think, I am outside of the record on this but as a matter of information, I think, the University of Arkansas, which by regulation of the particular governing body, the board of trustees, there are in the case of my client, the board of directors of the school district, have given the teachers tenure.

And we have specified conditions upon which a teacher maybe discharged, but we cannot of course, go contrary to a state law.

School districts are creatures of the state law and if the state says, we must have an affidavit, of course, we have adhered to the state law.

But if an affidavit was filed, then I think we would be bound by the tenure provisions that we read into our contracts and the information that maybe developed by the affidavit would -- could perhaps be used a little differently by different school districts depend on what -- depending upon what their particular regulations that they may put in their contracts may be.

Alright, but in general, aside from that, I think it takes nothing to discharge if you give the notice as required or after the one year carryover.

You can discharge with or without cause.

Justice Felix Frankfurter: Any of the financing of the school districts or the school within the school district, are they by the -- how are they financed?

Mr. Herschel H. Friday Jr.: The school district get financing in two ways.

They have what we call, ad valorem taxes, which under our present constitutional provision, each school district can vote by putting up a budget ahead of time and specifying a mileage in having the people voted ad valorem taxes, without limitation.

Justice Felix Frankfurter: Within the district, of course.

Mr. Herschel H. Friday Jr.: Within the district, yes, sir.

In addition, the school district gets state aid on the basis, or forgotten of figures, a little over half would come in from their own taxes and perhaps a little less than half would come in from state aid which is distributed on a minimum foundation and apportionment act of the state legislature.

Now, as I stated, we do not challenge the proposition that under certain circumstances, the freedoms of assembly and of association and of joining any type of organization that a teacher might be required to list in this affidavit, we do not challenge the fact that they would fall within the First and therefore brought into the Fourteenth Amendment, under certain circumstances.

Now, in the situation here, I am not sure that we hit that substantial abridgment of the freedom of association.

Now, in the cases that the Court has considered, if we're talking about a private situation, which the facts of this case show, that is as to the parties, these affidavits were, under these facts, treated as confidential.

Now, there is nothing in the law that makes them confidential.

There is nothing in the law that makes them public records.

And the Supreme Court of Arkansas, when it passed on the case, really left the question open.

But they did point out that they could be treated as confidential.

Now, as long as this, they are treated as confidential information, as long as we do not get into a situation, such as Alabama or Bates, whereby if we are concerned with NAACP membership, so that the mere public knowledge of that membership interferes substantially with the right of association, because it discourages one to associate, if they are going to be subjected to punishment by physical abuse or annoying phone calls.

Now, we do not have that situation here on this record.

We are not talking about anything as constituting a substantial, an abridgment of these rights as those -- as those cases are.

Here, we have information furnished to a school board and the other case you will have, it's furnished to of course to a board of trustees of the University by policy.

They keep them confidential; no one knows about it, we feel is a proper inquiry.

So, I feel first on the balancing of the two considerations as we see it.

I'm not sure that we even have a substantial abridgment of these rights.

Although, as if it had been in the cases where the Court has said that these are so important that we'll weigh this against the considerations of the State if the State has strong cogent reasons for acting in this field, even though they abridge them some, we'll weigh one against the other.

Now, in the weighing process, I see nothing in these facts that gets it even in the category of those cases.

Alright, now, the other consideration --

Justice Felix Frankfurter: Why -- why do you -- may I ask you why you say that --

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Felix Frankfurter: -- because if it is contended by Mr. Carter, the board is asking that this legislation requires that he answers questions, information of which he may withhold, and to that extent, you're intruding upon what do the private deserves, on that argument, isn't that true?

Mr. Herschel H. Friday Jr.: Yes, sir.

Mr. Justice, I am not sure that I follow you.

Justice Felix Frankfurter: You said you want -- you said you couldn't think there was any abridgment here because the suit is maybe kept confidential, isn't that right?

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Felix Frankfurter: Now, I'm suggesting --

Mr. Herschel H. Friday Jr.: I understand.

Justice Felix Frankfurter: I'm suggesting that if the inquiry goes to things which maybe kept private even to disclose to a responsible body like the trustees of universities -- University of Arkansas.

And to that extent, you're compelling somebody to say something or put something on paper that he may withhold.

Mr. Herschel H. Friday Jr.: Yes, sir.

I suppose Mr. Justice, I was speaking in a manner of degree.

Even on that analysis, I could think -- I should think it would not be as important to a person if he were disclosing it to a group of gentlemen, five or six in number, who were interviewing him concerning his position.

Certainly, in a matter of degree, we do not have the same substantial type abridgment, if he had to disclose it to the whole world.

Justice Felix Frankfurter: But once you invoke the questions of degree, you invoke balancing, don't you?

Mr. Herschel H. Friday Jr.: Yes, sir.

I think we invoke -- we have matters of degree in the whole question.

I think that's the position, certainly, sir.

Justice Hugo L. Black: How could it be balanced?

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: How could it ever -- how could it be balanced?

Mr. Herschel H. Friday Jr.: How could it --

Justice Hugo L. Black: Without his divulsion, if he does belong to some association.

What you have is an affidavit that requires him to tell all the associations?

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: You can't get out of that by saying, I belong to these and others I do not go -- I do not think is relevant.

Mr. Herschel H. Friday Jr.: No, sir.

Justice Hugo L. Black: If he fails to do that, he loses his job that's --

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: So that the only way he could -- if there is to be a balance here, the only way it could be done to see whether or not he might be subjected to other telephone calls and harassments, would be for him to say, I belong to such and such an organization which would subject me to harassment.

If it -- could it be done in any other way?

Mr. Herschel H. Friday Jr.: No, sir.

Justice Hugo L. Black: Under that statute has drawn, which requires statement of all organizations, even if they have used to harass, it has no limitation at all.

As no -- is there any way that he can consistently, with this law, refuse to tell all the organizations he belongs to in this affidavit without even being guilty of perjury or losing his job?

Mr. Herschel H. Friday Jr.: No, sir.

Other than with the limitations of acting in good faith and knowledge that this Court has put in, I think if he inadvertently forgot one or something of that sort, certainly we aren't talking about that.

But, I would say that on its face, the statute reads and you have correctly stated, he is required to list these associations that he has belonged or to which he's been a dues-paying member within the five-year period.

Justice Hugo L. Black: But then, he might, for all we can say --

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: -- belong to some organization that would subject him to the same kind of harassment that was referred to in NAACP against Alabama.

Mr. Herschel H. Friday Jr.: Well, in that sense, it -- my point was, in the Alabama case, certainly the Court found on the facts as I recall --

Justice Hugo L. Black: But we couldn't find here on the facts without divulging what organization he belongs to, could we?

Mr. Herschel H. Friday Jr.: On the facts that are before this Court, we do not get into that end of it, as I see it.

Now, all --

Justice Hugo L. Black: Do you -- do you not because of the breadth of the affidavit it has to be made?

Is it not in -- inescapable that you do reach it?

Must we not assume that he might belong to some that would subject him for the harassment or should we assume the other?

Mr. Herschel H. Friday Jr.: I think you would have to assume, Your Honor that it would be divulged to these 12 that these 12, would then not treated as confidential that it would then be divulged to persons who were off the temperament to subjecting to that harassment.

I think we'd have to assume several things that may well result from the application of this Act, which might possibly own down the line and make it unconstitutional in its application, but cannot affect its constitutionality on its face, which as we see it, is the question now before the Court.

Justice Hugo L. Black: Following up --

Mr. Herschel H. Friday Jr.: -- we could assume many things.

I think certainly, sir.

Justice Hugo L. Black: Following up Mr. Justice Frankfurter's question, is what I had in mind.

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: Is this, if it be true that this is broad enough to require revelations and divulsions of organizations in which he belonged, it might subject him to the harassment.

He therefore, has a right to privacy in that regard, a constitutional right --

Mr. Herschel H. Friday Jr.: Alright, sir.

Justice Hugo L. Black: Couldn't the State abridge that by saying, we won't tell anybody?

Mr. Herschel H. Friday Jr.: Yes, sir.

I'd say that even though we concede, he has the constitutional right.

I'd say the State, in proper circumstances of which our position would be this was one, can abridge that right.

Is there a compelling reason here for the State that justifies an abridgment of that right?

Now, there was not in Alabama, there was not in Bates as this Court found.

Justice Hugo L. Black: Maybe I'm -- maybe I'm telling -- but the thing I have in mind, it may not be relevant and it seems to me it might be.

He said he was not in -- well, that was because we knew what the organizations were.

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: They could test it out.

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: The only way you could revert -- review to bring about what these organizations are is for him to give out the names of those to which he belonged, which would subject him to this -- what was found in that case to be a very important matter.

Mr. Herschel H. Friday Jr.: Yes, sir.

Justice Hugo L. Black: As constitutionally speaking.

Mr. Herschel H. Friday Jr.: Yes, sir.

I I'd suppose my position is that it's not just enough to find to get a final decision of the issue before this Court that there is first, a constitutional right that the constitutional right may well be abridged and that there will be interference with his complete freedom of association by facts that may develop, if a full disclosure is made.

I think it's not enough just to find that.

We also, or the Court also, makes an inquiry to determine whether or not, the State is properly asked, acting within its field, to get the information and balances one against the other, and then determines whether there is an abridgement within limitations because of what the State is doing and the need for the information that the State is getting in this situation.

I don't know whether – properly --

Justice Hugo L. Black: Well, that's your position.

You can make your net so broad that it would include not merely, taking the argument that's been made.

It would include not merely the revelation of things that, alright, it teaches, the Board ought to know them, it would include something that might bring about the very results that were mentioned in Alabama.

You make your net so broad that there's no way to escape revelation of it, divulging it, unless -- and to get it protected, you think with the bets of the statute.

Mr. Herschel H. Friday Jr.: The statute is as broad as could be.

It asks the blanket question.

There isn't a question about that, sir.

It asks the blanket question, list them all.

There is no -- there is no attempt to define them, to list professional organizations or list any other category.

It says, list all organizations.

Justice Hugo L. Black: And your answer to that seems to be that there are some -- if you might have to -- it was going to be abridge this Constitution and I know that it would, but since it's been held, since they would hold it confidential, that's enough to justify the breadth of the statute.

Mr. Herschel H. Friday Jr.: I don't think that it need necessarily, Mr. Justice, go off on the point of whether they even hold it confidential or not.

I think then as long as they are holding it confidential, certainly, we do not have the substantial type abridgment that we may want to guard against.

Now, even if it's not held confidential, there still would be the basic balancing of the State's interest on one hand against the individual's interest on the other in the form of the abridgment of legislation.

Chief Justice Earl Warren: Mr. Friday, may I ask you this question and maybe at little feel but you're -- you were telling us about the limited tenure that you have in Arkansas and you told us that within certain 10-day period, the contracts could be terminated or --

Mr. Herschel H. Friday Jr.: Yes, sir.

Chief Justice Earl Warren: Or -- by either party.

Mr. Herschel H. Friday Jr.: Yes, sir.

Chief Justice Earl Warren: Now, is there anything in that tenure that would protect the man from termination of his contract for being a member of the NAACP and for no other reason if that was disclosed in this affidavit?

Mr. Herschel H. Friday Jr.: If I understand you Mr. Chief Justice, if I understand your correct -- your question correctly, you are asking me that if -- is there's anything in tenure however, we get it in Arkansas --

Chief Justice Earl Warren: Yes, yes.

Mr. Herschel H. Friday Jr.: -- that would protect the man against being discharged if -- for being a member of the NAACP, if that were disclosed in the affidavit.

Chief Justice Earl Warren: Yes.

Mr. Herschel H. Friday Jr.: Is that correct?

Chief Justice Earl Warren: Assuming that there is no other reason for his discharge, as the superintendent or the president of the University at least had said this to one of these appellants.

Mr. Herschel H. Friday Jr.: Now, first, of course, there's nothing unless in a particular district by board action.

There is no tenure provision at all.

Now, I would assume that there would be no reason in the absence of some tenure provisions by a particular board of directors that a school district need to assign any reason.

They could simply give notice that you are discharged as a practical matter would be very difficult to find out whether they did it for this reason or did it for another.

But now, if your question is, if you could establish, of course, even though they have a right to discharge them without cause, if they use an unconstitutional cause that is if you discharge a man on a basis of discriminating against him because he is a colored man, then I think you would -- you would have certain rights even contract rights supposedly that could be enforced.

Chief Justice Earl Warren: Well, let's don't say it, say, a colored man, let's say it's white man who belongs to the NAACP.

Mr. Herschel H. Friday Jr.: Yes, sir -- yes, sir.

Chief Justice Earl Warren: Now, could he be discharged solely for that reason if it was disclosed in his affidavit?

Mr. Herschel H. Friday Jr.: And that -- that's the sole reason listed?

Chief Justice Earl Warren: Yes, sir.

Mr. Herschel H. Friday Jr.: Other than how his constitutional rights would be affected, by virtue of the action taken, I'm not sure of trying to think Your Honor, I'm not sure.

Supposedly if the school board, which when it acts, it constitutes state action, he might well violate some constitutional rights, maybe if you get into the civil liberties and what not.

But as far as under -- just under the laws of the State of Arkansas, unless the particular provisions of tenure that were there stated, incidentally as do Little Rock, that you have to have some reason which bears on fraud, dishonesty, incompetency, and what not.

Unless we could bring it within one of those provisions or unless the facts develops that this discharge, under the tenure rights that he has, must be on these reasons that we give.

I'd have to fit the NAACP and -- and see where we -- if it -- when the -- when I analyze the facts and see if I came out with an answer that I had brought it within or without what his contracts right were by virtue of that tenure.

Now --

Chief Justice Earl Warren: What your legislature has said?

I don't know whether it's in this Act or one of the others that the NAACP is a captive of the Communist Party.

Mr. Herschel H. Friday Jr.: The legislature recited a finding of a committee to that effect in Act 115.

Yes, sir.

Chief Justice Earl Warren: That's the one that was struck down?

Mr. Herschel H. Friday Jr.: That was the one that was held unconstitutional by this Court, the three-judge court --

Chief Justice Earl Warren: Yes.M

Mr. Herschel H. Friday Jr.: That upheld the constitutionality of this one in which we did not plea.

Chief Justice Earl Warren: Yes.

So, would you mind telling us if most of your school districts do or do not have this tenure that is established by their own departments?

Mr. Herschel H. Friday Jr.: Mr. Chief Justice, I do not know the answer to your question.

Chief Justice Earl Warren: That's alright.

Mr. Herschel H. Friday Jr.: I would think most probably do not.

I have found a very few of them have the detailed administrative procedures as the Little Rock District has.

Yes sir.

Justice Felix Frankfurter: How many districts, school districts are there in the State of Alabama?

Mr. Herschel H. Friday Jr.: There are over 400.

Your Honor, too many.

Yes, sir.

Yes, sir.

Justice Tom C. Clark: Mr. Friday, this notice if given -- it had to given 10 days after the school term ends?

Mr. Herschel H. Friday Jr.: Yes, sir.

Yes, sir.

After the end of the school year.

That was the provision of the statute at the time.

And the Supreme Court of Arkansas held in a situation when the school district did not give the notice within the 10-day period.

The teacher was automatically rehired on the same terms for the next year and the courts suggest -- yes sir.

Justice Tom C. Clark: And then when you have to file an affidavit under this Act?

Mr. Herschel H. Friday Jr.: The affidavit on this Act has to be filed once a year Your Honor.

Justice Tom C. Clark: (Inaudible)

Mr. Herschel H. Friday Jr.: Eventually, I've forgotten the exact time that is there.

It's before the -- before the --

Justice Tom C. Clark: I don't think it's in the Act.

And when I read it, it came after if you have not receive the notice which would be tantamount to a renewal and he came back in the fall, or I'd rather -- he had file it before the 10 days.

Mr. Herschel H. Friday Jr.: As a matter of policy, the superintendant sends out notice and states that contracts will be considered in May, you must have your affidavits then by such and such a time.

So, probably, each school district is more or less regulating that but when they're requiring the affidavits to be in prior to the new contracts being issued.

Justice Tom C. Clark: You require them -- this district requires them before the 10 days expired then?

Mr. Herschel H. Friday Jr.: Yes, sir.

Actually, we got in a situation where some of these questions unanswered because the lawsuit was filed in the federal court and a preliminary restraining order was issued enjoining in a class action, which through some uncertainly as to how broad it was covered, enjoining everyone from taking any action in one way or the other.

So, everyone including the University of Arkansas had to hold up on it.

So, we finally got around and everyone went by the 10-day period and these questions were never answered.

And then we gave them another time limit.

I think in this situation, he was given up to June the 25th as I recall, of that year, to get in the affidavit after the three-judge federal court dissolved the injunction and held that Act 10 was constitutional.

He was given a specified time limit.

Justice Tom C. Clark: In any event, while you construe the act of the filing affidavit prior to renewal, (Inaudible) of the renewal 10-day period.

Mr. Herschel H. Friday Jr.: I hadn't really -- I hadn't really thought about it, Mr. Justice Clark, but I think that I would answer, yes to that.

Justice William J. Brennan: Well, I just wondered, Mr. Friday, if that is in what Section 4 of the statutes would require.

As I understand that Section 4, it provides that as a violation by the school district if any contracts entered into with anyone who has not filed an affidavit.

Mr. Herschel H. Friday Jr.: Yes, sir.

In other words, there are penalties.

In fact, you can recover, I think, against the board that enters into a contract.

Chief Justice Earl Warren: Mr. Friday, that I probably just -- or just one more question on the tenure matter.

Assuming that the -- in the case of an old-time teacher like this one, the board sends him notice that his contract will not be renewed, is he entitled to a hearing in which cause must be shown for his discharge, and if so, what kind of a hearing is it, and is there any judicial review of it?

Mr. Herschel H. Friday Jr.: We did not so interpret it.

He was given no hearing and had no opportunity for judicial review.

Chief Justice Earl Warren: He has no opportunity for a hearing?

Mr. Herschel H. Friday Jr.: Yes.

In that situation, we treated it, it maybe subject -- now, these are questions, perhaps they have not been answered for the state court.

Chief Justice Earl Warren: Yes.

Mr. Herschel H. Friday Jr.: If an employee decided to raise it by virtue of having a contract automatically renewed or by virtue of having tenure rights which are read into his contract by administrative procedure.

But, the school districts, being preachers of the legislature, and the legislature said, that he must do these things, we had taken the position and had so advised them and no one had challenged it or taken to court if the affidavit were not filed.

They were written a letter and stating under these circumstances, we will not be in position to renew your contract.

And Mr. Shelton comes --

Chief Justice Earl Warren: And would that be the same -- would that be the same regardless of what the board might have had in mind when it refused to renew his contract?

Suppose the Court --

Mr. Herschel H. Friday Jr.: Do you mean if the board had another reason --

Chief Justice Earl Warren: Yes, yes.

Mr. Herschel H. Friday Jr.: -- not to renew it?

Chief Justice Earl Warren: Yes.

In other words, does the board have to disclose to the teacher the reason for not reviewing -- renewing his contract?

And then, after having done that, is he entitled to a hearing?

Mr. Herschel H. Friday Jr.: Under state law, aside from what you may put in the contract itself in particular districts, it is my understanding the board does not have to give any reason and he -- and the discharged employee is entitled to no court review (Inaudible).

Justice Tom C. Clark: That's that Wabbaseka, if I was --

Mr. Herschel H. Friday Jr.: Wabbaseka.

Yes, sir.

Justice Tom C. Clark: That's what that at all.

Mr. Herschel H. Friday Jr.: I think, substantially that's correct Your Honor.

Justice John M. Harlan: Mr. Friday, are there pension provisions for teachers such as this, pension on retirement are there?

Mr. Herschel H. Friday Jr.: Yes, sir.

We have teacher retirement in Arkansas.

I'm -- Mr. Justice, I couldn't give you the exact breakdown but we do have teacher retirement.

We have some overlapping, there's a question on right now of social security, but then, it's substantially a social security situation but we have a Teacher Retirement Act, yes, sir.

Justice William J. Brennan: And would the -- would this --

Mr. Herschel H. Friday Jr.: I know of --

Justice William J. Brennan: -- petitioners' rights would have been affected anywhere --

Mr. Herschel H. Friday Jr.: I would have to answer you.

I did not check it.

I know of no reason why he would be disqualified from receiving teacher retirement, that's correct.

Justice Hugo L. Black: There is not any stay of this Act (Inaudible).

Mr. Herschel H. Friday Jr.: I'm sorry, sir.

Justice Hugo L. Black: There is no stay of this Act by in the Court.

Mr. Herschel H. Friday Jr.: No sir, not that I am aware of.

Justice Felix Frankfurter: The District Court -- the District Court denied it, did it not?

Mr. Herschel H. Friday Jr.: There -- there was a --

Justice Felix Frankfurter: No -- no motion was made.

No result was held to this Court were stated --

Mr. Herschel H. Friday Jr.: No, sir.

There -- there was an application for a stay that was denied, it was not pursued further, as I understand.

Alright, perhaps Mr. Carter can answer that more accurately.

I had my recollection there was in this -- in this case.

I would just touch briefly on the other points that we have in this situation.

There is the allegation here that the Act, if not bad for other reasons because it is too general, we do not feel it is too general, then it is bad on the basis of condemnation by association, I suppose there's a proper charge of words.

Now, on the two general points, our position is that this is a proper area for state inquiry that the state legislature, in its wisdom which should not be tested or reviewed, determined that in the proper administration of the public schools, it would be helpful and school boards were directed in accordance with that determination to get this affidavit, to get a listing of the associations.

They were not told to discharge anyone.

They were not told to take any particular action one way or the other with reference to the information that they got.

The facts show that the school boards involved in this case have treated it as confidential as other personnel information.

There is no right to a public meeting or public records on information regarding personnel.

Otherwise, our statute provides, you must have those meetings.

We say that the State can properly ask this information that it is not too broad under the standards as set up by this Court, that there is no necessity to attempt to confine.

Alright, therefore, we say for that reason, the right of the State in this appeal, under the facts of this case in testing this act as to whether it's constitutional on its face, at least, outweigh any abridgment that may exist of freedom of speech or freedom of association.

Alright, now, further quite apart from that and if that would be the result, if this were a session of the legislature when there were no desegregation problems in the State, I think it is argued here that because it was passed at a special session of the Legislature of the State of Arkansas in 1958, when there were such problems, that by virtue of being part of a package, it is bad by association because it was one of the laws that were adopted by the legislature, which have been condemned and are being condemned here as attempts to, I believe the language is, defy the decision of this Court.

Now, we state with reference to that that the allegations are not sound.

They are not sufficient grounds to condemn this Act, to hold it unconstitutional on its face.

There is nothing in the base of the Act that makes it unconstitutional.

There is nothing in the facts that makes it unconstitutional as to its application.

We state that the motives of the legislature, the motives of the Governor of the State of Arkansas in his proclamation and in the speech that was introduced in this record to which we object it on the grounds that it was not proper or immaterial.

As this Court has held and as the State of Arkansas has held, the motives make not difference if the legislature is acting within the proper scope of its authority, we will not inquire as to why we did -- as to why it did these things.

Now, that basically is our position.

Thank you very much.

Mr. Ramsay, alright, sir, represents the Pine Bluff School District.

Chief Justice Earl Warren: Yes sir, yes sir.

Mr. Ramsay.

Argument of Louis L. Ramsay, Jr.

Mr. Louis L. Ramsay, Jr.: Mr. Chief Justice Warren, we appear in this case as attorneys for Pine Bluff School District No. 3 and Arkansas AM&N College.

Arkansas AM&N College is the college that was founded in the late 1800s for the Negro citizens of our State and possibly, you haven't heard quite as much about Pine Bluff as you've heard from our sister city of Little Rock, and so I should tell you that we are about 45 miles from Little Rock and Arkansas AM&N College is located there.

We represent the school district and the college.

Justice Felix Frankfurter: There is someone that said, happy is the city that has no dispute.

[Laughter]

Mr. Louis L. Ramsay, Jr.: I would agree sir.

I would say this that here, answering your question earlier Mr. Justice Frankfurter about the number of faculty at Arkansas AM&N College, there are approximately 100 professors there or teachers and with the administrative staff, there are about 160 there.

And that would be one of the colleges that you mentioned a moment ago, exclusive of the University.

Justice Felix Frankfurter: Is that co-education?

Mr. Louis L. Ramsay, Jr.: Yes, sir it is.

As -- as indicated in the record, neither of the clients whom we represent in this cause are here because of any failure on the part of any teacher or professor to sign the Act 10 affidavit.

We were brought into this case after the original action had been filed. Subsequently, an amended complaint was filed making Arkansas AM&N College and Pine Bluff School District No. 3 parties in order that there would be a class action.

And so at that time, we did raise a question in the lower court as to whether or not, there was a justiciable issue or whether there was actually a case or controversy, but we were overruled there and did not pursue that in this appeal here.

Justice Felix Frankfurter: I must've misheard.

Did you say a minute ago that no one has failed to file such an affidavit?

Mr. Louis L. Ramsay, Jr.: In this -- in our case Your Honor, I said, no one had been dismissed or had failed to do it, yes, sir.

Justice Felix Frankfurter: Had failed to do it.

Mr. Louis L. Ramsay, Jr.: Yes, sir.

Now --

Justice Felix Frankfurter: And then what is the controversy that comes up?

Mr. Louis L. Ramsay, Jr.: As far as we were concerned, we didn't feel that there was one.

We were brought in as a class action to make it a class action since the plaintiff here filed, for themselves and other similarly situated, in order to make it a class action.

Now, as far as Pine Bluff School District No. 3, the record in this case indicates that there were approximately 275 teachers.

That 259 had already complied with the Act and that 16 had left the school system for one reason or another, the normal attrition I suppose of school teachers getting married at first one thing and another.

But in any event, none of them were dismissed or not rehired for their failure to sign the affidavit.

Now, with reference --

Justice Felix Frankfurter: That must be stupid Mr. Ramsay, would you -- would you enlighten me.

You say, you were brought in because of the class action, does that mean good fellowship?

What is this?

I didn't understand that.

[Laughter]

Mr. Louis L. Ramsay, Jr.: No, sir.

[Laughter] I can't tell that Court why we were selected except you will notice in the brief that they said Pine Bluff is an area near the center of the State, and of course, the Arkansas AM&N College being there, I'm sure that that was one factor in selecting us as a class defendant.

Now, with reference to the college, I might say that the restraining order was issued prior to the time that the contracts for the college were issued.

Now, that wasn't true as far as Pine Bluff School District 3.

They had already gone through with their procedure of hiring and their contracts had been executed at the time the hearing in the lower court was held.

We submit, as far as our people are concerned, our clients in this case that we can't agree with the basic assumption that seems to run through the brief filed in here by the appellant.

And that is that the school districts will not act properly with reference to the information which comes from these affidavits.

Now, as I suggested to you, the only thing that we have in the record as far as this case is concerned involving either Arkansas AM&N College or Pine Bluff School District No. 3 is a fact that they were executed, the contracts were given out, and apparently, caused no great problem in connection with it.

So, I think that we cannot agree with the position taken by the appellants in this case that there will be an area of fear or they would be afraid to sign the affidavits, they can't continue to teach, and there would be a mass exodus from the systems.

That isn't true as far as the facts show in this particular case.

I would have to say that that's conjecture or speculation and isn't bourne out by what we held before you in this particular case.

I would have to proceed on the basis that school districts, their directors are fair and impartial people, that they do the best job that they can under the existing law, and I am certain as shown by the evidence here in this case that they have not supplied any information that has been promulgated or shown by the affidavits in the cases which we have before you.

Justice Felix Frankfurter: At all events that such -- what you call appeal would -- or concerned with the prospective of something that would happen next year, isn't that right?

Mr. Louis L. Ramsay, Jr.: Certainly, sir

.Certainly, sir.

Justice Felix Frankfurter: When is the Legislature of Arkansas in session?

Mr. Louis L. Ramsay, Jr.: It comes in -- in the next -- in January, sir, of 1961.

Justice Felix Frankfurter: So then one can conjecture, we might conjecture that they might decide to reveal it.

Mr. Louis L. Ramsay, Jr.: Yes, sir.

Yes, sir.

It's certainly good.

Now, as -- if the Court said, I think in the Garner case with reference to knowledge and good faith, I believe in that case, there was an oath and the Court I believe, by Mr. Justice Clark wrote the opinion in that case and he said that he assumed.

The Court was speaking.

They assume that the Board of Public Works in Los Angeles would apply the oath in good faith or allow them to take to in good faith.

I think that we -- the same assumption is true here.

I believe that the school districts are entitled to a basis that they would apply the Act in good faith and certainly, that there could be some information that would be very relevant and very pertinent, both as to suitability and to fitness that would apply in the affidavits that are required by the Act.

And I think that --

Chief Justice Earl Warren: Weren't there something in the record of one of these cases to the effect that the members of the school board said that they were under no obligations to keep these sayings confidential?

Mr. Louis L. Ramsay, Jr.: Your Honor, I believe that that will be in the Carr case which is the next one up in which I'm not in, but I think I can answer that question --

Chief Justice Earl Warren: Well, if you would but I --

Mr. Louis L. Ramsay, Jr.: -- because it's cited in the brief that we have in this case.

The president of the University of Arkansas stated that those affidavits were not available to the public and were kept as confidential information and I believe that that is true of the school districts that I'm familiar with, at least.

And I think it comes down to the bare facts of these, when we get right down to the lead of the case as whether the information required in these affidavits that is their organizations, professional, business, academic, if that has any relevance to their suitability or fitness for the job of the teacher.

We submit that properly applied that it certainly could and there is no reason to believe that it would not be properly applied in the case that we have before the Court.

Chief Justice Earl Warren: If you have -- if you have another statement, you may --

Mr. Louis L. Ramsay, Jr.: I -- I believe that's all, Your Honor.

Chief Justice Earl Warren: You may pass.

Justice Hugo L. Black: Can I ask you just one question?

Mr. Louis L. Ramsay, Jr.: Yes, sir.

Justice Hugo L. Black: What is in reference to what you said.

When a question of discharge of a teacher in the University of Arkansas contract, who has to pass it?

Mr. Louis L. Ramsay, Jr.: Your Honor --

Justice Hugo L. Black: (Voice Overlap) to be discharged.

Mr. Louis L. Ramsay, Jr.: I'm not familiar with the answer to that question.

It will probably be applicable in the next case which --

Justice Hugo L. Black: Well, I -- I just simply asked because you think the --

Mr. Louis L. Ramsay, Jr.: I might --

Justice Hugo L. Black: Question that you have said, it would not be -- it would be held confidential and I was just wondering who had to act on?

Mr. Louis L. Ramsay, Jr.: My assumption would be that it would be the board of trustees.

Justice Hugo L. Black: How -- how is the board made of?

Mr. Louis L. Ramsay, Jr.: It's appointed over a staggered period of time with the ratification by the Senate, I believe.

Justice Tom C. Clark: Appointed by whom?

Mr. Louis L. Ramsay, Jr.: Appointed by the Governor, sir.

Justice Hugo L. Black: By the Governor?

Mr. Louis L. Ramsay, Jr.: Yes, sir.

Justice Hugo L. Black: And approved by the Senate.

Mr. Louis L. Ramsay, Jr.: Yes, sir.

Justice Tom C. Clark: Are all -- are the board in all the districts appointed by the Governor?

Mr. Louis L. Ramsay, Jr.: No, sir.

No, sir, in the school districts, they are elected by the people, Your Honor.

The board, as far as the colleges are concerned, are appointed by the Governor.

Justice Tom C. Clark: Well, that the 400 are locally elected?

Mr. Louis L. Ramsay, Jr.: All of them, yes, sir.

Justice Tom C. Clark: What's that the number -- what are they?

Do they vary in number?

Mr. Louis L. Ramsay, Jr.: Well, I believe that be about seven or eight, on most of the --

Justice Tom C. Clark: And you all find about the --

Mr. Louis L. Ramsay, Jr.: Yes, sir, we have 8 there.

Justice Charles E. Whittaker: There's been any ruling by your Attorney General that it is confidential in nature?

Mr. Louis L. Ramsay, Jr.: I'm not sure about that.

I believe that there had and I believe that they held that they were of confidential nature.

Justice Charles E. Whittaker: Or didn't the Supreme Court in your State intimate that in the opinion -- its opinion?

Mr. Louis L. Ramsay, Jr.: Yes, sir.

I think so.

Yes, sir.

I believe Mr. George Rose Smith, Justice George Rose Smith, speaking in the opinion that was written in that case.

It was said that if they should not vote, not vote in confidential, then of course, that will get into a --

Justice Hugo L. Black: (Inaudible) confidential by whom?

Mr. Louis L. Ramsay, Jr.: Well, I would say the administrators of the school Your Honor.

Justice Hugo L. Black: Administrators -- that wouldn't do any good if the board of trustees had found out.

Mr. Louis L. Ramsay, Jr.: Well, I think certainly, the board of trustees or the school board themselves, would be entitled to that information.

Chief Justice Earl Warren: Thank you Mr. Ramsay.

Mr. Louis L. Ramsay, Jr.: Thank you, sir.

Chief Justice Earl Warren: Mr. Carter.

Rebuttal of Robert L. Carter

Mr. Robert L. Carter: I -- I would just like to clarify one question that was raised, I think by Mr. Justice Frankfurter and as the question of the status to this -- as is extent, when the --

Unknown Speaker: As to what extent.

Mr. Robert L. Carter: Broad -- a restraining order was secured in the -- in the lower court and was extended until here.

Thereafter, after decision was made striking down Act 115, a stay was applied for in the court below and was denied and we applied for a stay here, which was denied by the -- by Mr. Justice Whittaker, I believe.

So that --

Justice Charles E. Whittaker: You were asking for more than stay.

You were asking me to make effective what this (Inaudible) have denied, is that right?

Mr. Robert L. Carter: Well, I wasn't -- we thought we were asking for stay of the reach of the statute until -- why we could appeal here.

Now, thereafter, the appellant here, Shelton, he had therefore refused to submit the affidavit and he was dismissed by virtue of that.

Now, beside of this, that was the only thing I have in terms of clarification.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Edwin E. Dunaway

Chief Justice Earl Warren: Number 83, Max Carr et al., Petitioners, versus R. A. Young et al.

Mr. Dunaway.

Mr. Edwin E. Dunaway: Mr. Chief Justice and may it please the Court.

I represent the two petitioners, Max Carr and Ernest Gephardt.

Max Carr was an Associate Professor of Music at the University of Arkansas, until he was discharged because of failure to comply with Act 10.

Ernest Gephardt was a vocational printing instructor at Central High School in Little Rock until he was discharged for the same reason.

We filed separate suits.

They were consolidated for trial in the Chancery Court and in the Supreme Court of Arkansas and the case is here on certiorari.

Now, there are several facts in our case which I think is important to make clear at the outset which add something to the other case, the Shelton case.

Carr and Gephardt did not refuse to file any affidavit, Carr being required to file an affirmation but in both cases, these two petitioners listed the professional organizations of which they were members, stated that they are not now and never have been, members of a subversive organization and offered to answer any questions touching upon their associations and activities which their administrative superiors might constitutionally ask them touching on their qualifications to continue teaching.

They refused to give the additional broad information required by the statute.

The record shows that no additional questions were asked of these or these teachers.

At the trial, the President of the University of Arkansas testified that he personally and the others in the administration wanted Carr to continue teaching that there had been no complaints about his teaching.

The same thing was true in the Gephardt case.

The superintendent of schools of Little Rock testified that Gephardt's principal had recommended that his contract be renewed and that but for Act 10, he would be -- would continue to be employed.

Since I am sure that the respondents in this case will argue substantially what was argued by the appellees in the other case.

I will proceed that both by making my argument and answering what I conceive to be erroneous contentions of what the applicable law is.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: The –

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: The University of Arkansas does have tenure regulations.

There is no statutory authority in Arkansas for any tenure regulations.

As was stated, it varies from each college, depending on what each College Board wants to do.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Theoretically, he can only be dismissed because after you've been there four years --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: But they have a -- each one gets a new contract which must -- each year there -- there's a new --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Right.

There is a sample contract in the record, Carr’s contract on page 99 of the record which is the typical contract that the University grants annually --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Yes, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: We do not contend that school authorities --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: 99, yes, sir.

We do not contend that school authorities may not ask teachers and prospective teachers about their associations and activities as they are relevant to their suitability, fitness, loyalty and so on as has been stated in the opinions of this Court.

We do say, however, that there is a great difference in permitting school authorities to ask any conscious questions and having a broad blanket statute like this which is not limited in any way.

It includes, you must list religious organizations to which you have made contributions.

You must list political, there is no limit whatever and a written record is made of it.

Now, this duress is the vice in this statute.

It is too broad.

It is an unjustifiable invasion of individual rights and there is no compelling necessity shown to warrant such a -- a great invasion.

Now, we alleged in our complaints and there is proof in the record that the real purpose of this statute was shown by two things.

The Governor's call, but particularly is addressed to the opening session of -- opening session of the second special session, made it plain that the purpose of the legislative session was to enact legislation as he put it to solve problems not of their own making but thrust upon us from the outside, namely by this Court.

Then there is, in the emergency clause, the declaration that the reason for the affidavits is to solve problems created by the Supreme Court's desegregation opinions in this -- in the school cases.

Now, it is our contention that true we cannot question the Governor's motives nor can we question the motives of individual legislators who voted, but if that emergency clause together with his address, setting the tone for the meeting and stating the purpose of the legislation shows what the purpose was as distinguished from the motive, we object to the equating of motive and purpose and we argue that under the decisions of this Court, there must be a compelling purpose which would justify the invasion which this statute makes.

Now, in the record -- I thought you were going to ask some questions.

We allege in our complaint that the real purpose was to provide a vehicle whereby school teachers who had the temerity to advocate compliance with this Court's decision in the Brown case, would be made known and that they could be hounded out of their jobs.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: And --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: If -- if they put down -- if they put down the Urban League or the NAACP or the Southern Council for Human Relations, the organizations such as the Citizen’s Council --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Well, there are --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Well, we might not be able to but there are those in the Citizen's Councils who --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Well, I wouldn't say that exactly Your Honor but they did.

Amis Guthridge testified that people who belong to the American Association in University Professors, the Urban League, the American Civil Liberties Union, the Little Rock Women's Emergency Committee to open the school, if they had their way, would be fired from the teaching system.

Now, it is our contention, true that just because there are organizations that want that doesn't necessarily mean that all teachers are going to be fired but we do argue that this unnecessary exposure runs -- views exactly the situation that was true in NAACP against Alabama.

It opens up these teachers to endless harassment by these groups and public denunciation and further than that, puts pressure on the local school boards which are annually elected, either to make this information public and get rid of them or to change the school board and that as a -- that the Court must look at this according to the facts of life in Arkansas as they are.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Here's the situation on that.

The Attorney General's opinion is in the record at page 100.

In the last sentence on page 102, "It is an administrative determination to be made by the respective boards as to the disclosure of information contained in the affidavits.

" Now, it is also true that the Supreme Court of Arkansas said that it would be possible for these affidavits to be put to an unconstitutional use.

It did not say, however, it recognized, as I read the opinion that it is up to the board that there is no requirement that they'd be made -- kept confidential and the fact that they maybe confidential today with one board does not mean that next year, they will be confidential so there is an ever present threat that organizations which may be considered to be unpopular by the folks in Arkansas will be made public and it will have the definite deterrent effect of making a great many of them refrain from participating in associations which they otherwise would join and work with.

Justice Felix Frankfurter: Well, suppose -- assuming that the restrictive use confidential, top secret restrictions govern -- would make the difference, assume that for the purpose of my question, could you enjoin the thing on the theory because another school board next year might take off the (Inaudible)?

Assume that under the existing situation and on existing school administration, there is the restriction -- there is the restriction placed upon them in terms for the affidavit.

Mr. Edwin E. Dunaway: Well, I think it would still be unconstitutional as being too broad --

Justice Felix Frankfurter: Well, that having --

Mr. Edwin E. Dunaway: What?

Justice Felix Frankfurter: My question was, assuming that that made a difference, that that would -- that that the objection now is that this is being made public and thus potentially an instrument of -- of arousing fear etcetera, assume that -- that --

Mr. Edwin E. Dunaway: That certainly is drawn.

Justice Felix Frankfurter: -- assume that that isn't confidential, it's alright to put and come in and say, "We enjoin this because next year, we might have different school boards."

Isn't it?

Mr. Edwin E. Dunaway: I guess you could.

Now, the argument has been made that if the legislature has acted properly, this Court cannot question its act but it seems to me that that begs the question which is involved.

The question here is, is it proper to enact such a broad probing piece of legislation and the record is absolutely devoid of any showing of necessity.

The only thing in the record on the matter of necessity is the testimony of the president of the University of Arkansas when asked by the Attorney General whether this affidavit would be helpful to the university officials in screening applicants and the president said no.

Now, granted -- just because the president said no, doesn't mean that the Act is unconstitutional, but it does seem relevant on the issue of whether this is necessary when it is urged in justification for the broad affidavit thing that it is needed by those administering the school system.

Justice Charles E. Whittaker: How do you interpret this language of the Court, record 134 saying, "In as much as the validity of the Act depends upon its being construed has bona fide legislation -- legislative effort to provide school boards with needed information?

It necessarily follows that the affidavits need not be opened to public instructions, where the permissible purpose of the statute is to enlighten the school board alone."

Now, isn't that a holding by the Court that the only permissible purpose is to enlighten the school board?

Mr. Edwin E. Dunaway: As I read it, the Court said that the information need not be opened to the public but does not say may not be open to the public and my argument is that there is the constant threat there that it maybe opened at any time.

Justice Charles E. Whittaker: And does that give effect of the phrase for the permissible purpose of the statute, is to enlighten the school board alone.

Do you give any effect to those words?

Mr. Edwin E. Dunaway: Well, as I pointed out in my petition for rehearing, the Court was admonishing the school boards not to use the Act for the purpose for which we contend it was enacted and that if they did, they might be in trouble.

It doesn't seem to me again looking at the thing.

Practically, that is necessary to accuse school boards of bad faith.

There may well be school boards in certain parts of Arkansas who in perfectly good faith could consider membership in the Urban League or the NAACP as grounds for dismissal.

And it therefore be presuming of their good faith, does not seem to me to be an answer to the argument that this statute requires too broad a base of information.

Chief Justice Earl Warren: Mr. Light.

Argument of Robert V. Light

Mr. Robert V. Light: Mr. Chief Justice and may it please the Court.

I represent the Little Rock School District which is one of the two respondents in this case.

The other respondent is the Board of Trustees of the University of Arkansas, in this instance, represented by the Attorney General of Arkansas who has filed a brief in the case.

The Assistant Attorney General is the present in the counsel table but has asked me to advise the Court that his differing argument to us in this instance.

I'd like to mention first Mr. Dunaway's argument that the -- the information contained in the affidavits is public information or it amounts to that.

Of course, the Attorney General's opinion is in the record in which he states that in his opinion, the information contained in -- in the affidavits is subject to such publication as the school board's in their discretion, might give it.

That opinion antedated the Supreme Court's opinion which authoritatively construed the meaning of Act 10 and the Supreme -- Supreme Court of Arkansas of course as Mr. Justice Harlan pointed out -- Mr. Justice Whittaker pointed out, said that the permissible purpose of the statute is enlighten school boards alone and I think in light of that construction by the Supreme Court of Arkansas, it would be an ill-advised School Board that would give any other use to the information contained in these affidavits.

Chief Justice Earl Warren: Consider that -- that language of the Supreme Court (Inaudible) holding to the effect that this is part confidential and cannot be used (Inaudible)

Mr. Robert V. Light: Your Honor, certainly, if it is not a holding it’s a caveat to that effect.

I -- I think it's a clear indication by the Court with regard to what it construes, what the statute means and what the legislature meant.

Chief Justice Earl Warren: If it did, can you say that it was not for use in any other way (Inaudible) it seems to me there is this difference.

Mr. Robert V. Light: Well, I -- I think that language that it need not be used in any other way preceded in the same paragraph, the language that the permissible purpose is to enlighten the school board alone.

And I -- I think the Court was working up to that that.

It says the statute clearly doesn't require that that it be made public and that it need not be made public under the language of the statute and then the Court said, "The permissible purpose is to enlighten the school board alone.

That seems to -- the respondents in this case, the petitioners assumed too much throughout their brief, throughout their presentation in this because the assumption is and the argument just made is that discharge or the hounding of the academic people, public employees, school employees will necessarily follow compliance with Act 10, but there's no showing made in this record to that effect.

There's no showing such as there was in NAACP against Alabama or Bates against Little Rock that actually, any such harmful effects, objectionable activities came about as a result of disclosing the information that is required in Act 10.

The record does show that four people refused to execute the affidavit out of 800 in the Little Rock Public School System.

The record shows that one professor at the University of Arkansas out of the entire staff there, refused to execute the affidavit.

The record in the case just argued prior to this of course shows that no one in the Pine Law School District, no one in the Arkansas AM&N College, refused to execute it.

So we have in the records in these two cases, only five persons out of some 16,000 as the record indicates, there are some 16,000 public school employees, classified employees, instruction employees in Arkansas, out of some 16,000, only five as far as this record reflects and as far as I know, had been directly affected to the extent that they have been -- their employment have been terminated for refusal to execute the affidavit.

Now --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Have they been filed in this Court, no sir, no, sir.

If –

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: I am sure that I could cooperate with Mr. Dunaway in getting them up after we have returned to Little Rock.

I believe we could withdraw them.

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: Mr. Justice Black, I will defer that question if I may to Mr. Dunaway when he returns. He argued this case in the Supreme Court of Arkansas and I did not, so I -- I'm sorry --

Unknown Speaker: (Inaudible)

Justice John M. Harlan: Could you tell me as a matter of information whether before this statue was passed, what kind of information that these school teachers have filed, if any?

Mr. Robert V. Light: With regard --

Justice John M. Harlan: (Inaudible)

Mr. Robert V. Light: -- you -- you mean that was the legislative, they required --

Justice John M. Harlan: Well, or the administrative requirement, would we happen to know?

Mr. Robert V. Light: Judge, I -- I couldn't tell you anything on that further than the usual matter of filing the license.

I do know that it is required to -- a public school teacher penalizing from the State Board of Education and of course that has to be presented to the employing board and the information required to obtain the license I -- I am not familiar with what goes into that.

The point I'm trying to make in reference to the number of people that there are in Arkansas subject to this Act, some 16,000 and that on this record we have only five who have not complied.

That is against this broad background of compliance with the Act and the Act has been in effect two years.

It became effective in September of 1958, applied to the renewal of contracts for the 1959-1960 academic year and again the renewal of contracts for the current 1960-1961 academic year.

Some 16,000 people complying with it on both occasions and we have not a word in the record showing the harmful effects which the petitioners predict but do not prove in this record.

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: This case, Mr. Justice Black, was tried in the summer of last year in the -- in June or July in my recollection, argued in the Supreme Court of Arkansas in about December.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Unless it were put in the record by stipulation of course, Your Honor.

Unknown Speaker: Is there anything in the (Inaudible)

Mr. Robert V. Light: I don't believe that the contents of any of the affidavits are in the record except the two affidavits presented by the two petitioners in this case which were in -- or not two -- affidavits were filed by Act 10 of course for the affidavits that they were putting in lieu of that for the purpose of their of their loss.

I believe there is nothing in the record with regard to the content of the affidavits obtained from the other 16,000 school teachers.

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: Mr. Justice Black, subject --

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: That they have not discharged any --

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: There have been --

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: There have been five.

Four school teachers in the Littler Rock School System, that's in the record and Mr. Carr, the professor in the University of Arkansas is the fifth one, five discharged for refusal to -- to comply with the Act.

Now, in the -- your question, I -- I misunderstood you.

I'm sure your question was, how may have been fired as result to the information they gave in, in compliance with it.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: I -- I think there's nothing in the record on that.

I don't know --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: No, sir.

I -- I believe there is nothing with regard to the contents of the affidavits filed by all the other people in the State.

There's nothing in the record.

Now, of course, there's -- there is also not in the record, any indication -- anyone been fired, any indication that any association or organization has lost members or that a teacher has quit an association or organization as the result of this or that any teacher been subject to any intimidation or coercion or action by private individuals which would come to this -- in this interplay of private parties and governmental action.

There's -- there's nothing at all in the record to that effect and that could've easily been put in the record as --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: If they quit.

Unknown Speaker: There's no way of knowing (Inaudible)

Mr. Robert V. Light: Your Honor, it has been -- yes, I have --

Unknown Speaker: We have -- because we have taken on the bigger statutes.

In other words, from that point --

Mr. Robert V. Light: Well, I -- I am feel perfectly justified in arguing that this Court can safely assume that there had been no such harmful effects to -- to the remaining school teachers in the system when there is no evidence as there was in the NAACP --

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Yes, sir.

In -- in NAACP against Alabama, there was testimony in the record.

As I understood the decision in that case to the effect that the NAACP membership had dropped in Alabama as a result of this prospective exposure and the same thing in the Bates case, Bates against Little Rock as I understood that -- that that testimony was put in the record.

We -- we don't have here.

We have an absence of it and I think in the absence of such a showing that can be so easily made that the safe assumption is there has been no such harmful effect.

Chief Justice Earl Warren: Is the mere fact that they've signed the affidavits are conclusive on the point that there is no thereat to their civil liberties because if the man didn't sign the affidavits, that is (Inaudible) what the -- the forms of the NAACP under the statute that your legislature has passed and your Governor assigns, they would have been entirely out of the employment and it could -- could not sustain any other (Inaudible) employment in any college in the entire state of Arkansas. It’s almost equivalent to banishment, isn’t it, insofar as (Inaudible) is concerned?

Mr. Robert V. Light: If Act 115 were constitutional, Your Honor.

Chief Justice Earl Warren: (Inaudible) titles, you take that into consideration that there's a -- there's a possible views that could be made and (Inaudible) this affidavit --

Mr. Robert V. Light: Certainly --

Chief Justice Earl Warren: The legislature passed it then your Governor signs it and it was to all intents and purposes and what a -- and to state the primary requirements, they file this action and was been (Inaudible) that that it requires them contributions.

Mr. Robert V. Light: Well, Mr. Chief Justice, Act 115 was passed during the regular session in January or February of 1959.

Chief Justice Earl Warren: (Inaudible)

Mr. Robert V. Light: The suit -- this suit that has just been argued prior to ours was instituted along about April 1st, in my recollection, in a temporary restraining order, restraining the enforcement of Act 115, was promptly thereafter entered, in my recollection on that.

And therefore, we did not have a situation at contract renewal time which is in May as the school term is approaching or close at the end of May.

We didn't have a situation of Act 115 being -- ostensibly on the book where it would need to be enforced because of the temporary restraining order then in effect at the time the contracts were being renewed for the forthcoming 1959-1960 school year.

So Act 115 never was a legitimate threat in reference to a -- to depriving anyone in the public schools of employment in Arkansas because the contracts of employment been in effect, did not come up for renewal until such time that the Court had already entered in taking jurisdiction in the matter and shortly thereafter, I believe in June of -- it declared Act 115 unconstitutional.

Unknown Speaker: (Inaudible)

Mr. Robert V. Light: Like Act 10, one now before this Court, not that I'm --

Justice Hugo L. Black: (Inaudible)

Mr. Robert V. Light: Not -- not that I'm aware of, Mr. Justice Black.

In final reference to the assumptions and presumptions being made in the absence in the record of any showing that there has been a harmful effect from anyone.

I think that it should be pointed out to the Court that in order to accept the petitioners' position, that there will flow from the mere existence of Act 10 on the books and compliance with it, there will flow, these harmful effects of people leaving organizations of having their right to associate impinged upon and their privacy invaded.

It'd be necessary for this Court to presume that the school board members and the members of the boards of trustees at various colleges in the State will violate their oaths to maintain and uphold the Constitution of the United States and put this information they gained through the State Act to an improper and under the decision of the Supreme Court of Arkansas an impermissible use and that’s where that Court had ever made a presumption of that character with reference to prospective acts of public offices.

I guess the background of the facts with regard to what the operation of the Act has been for a period of two years that it hasn't, as far as the record shows, has any -- had the harmful effects that are predicted, that are feared by the petitioners in this case.

It seems appropriate to examine the position the school authorities would be in, in the event that the Act was struck down.

Under the Act, they can and of course they are required to inquire into all organizational associations of School teachers and prospective school teachers.

If the Court holds that they cannot do this because some of the organizations that would, thus be revealed or disclosed would be irrelevant -- membership and it would be irrelevant to the question of fitness and suitability to serve as a public school teacher.

What position is the school board's and the board of trustees of the -- of the state colleges in at that time.

Are they to request as I understood Mr. Dunaway to suggest and as the affidavit filed in these two cases by these two petitioners, the affidavit will say through themselves would seem to suggest to suggest that what they would prefer to do is the board asked the employee to list all associations to which he has become a member which he is associated that might be relevant to the question of his suitability and fitness as a teacher, in other words, allow the prospective public employee to make the determination of relevancy.

On the other hand are they to request the employee to furnish information with regard to specific organizations that the school boards and there are some 422, I believe, that Arkansas have determined as a result of an extensive independent investigation that are relevant.

In other words, of the thousands of organizations that exist in Arkansas and every other state as each school board to be required to make an extensive examination to find out which organizations it would feel relevant to inquire of its employees if there -- if they are members.

And both of those suggestions and both, I believe, been seriously advanced by the petitioners in this case, seem to be holding impractical and it does not say that they -- that any constitutional right requires placing a burden of this character of the second suggestion on the school board or making such a fruitless and impossible type of -- of requirement as to allow the employee to make his own decision on relevancy as the two petitioners in this case have.

I would suggest in closing that the Supreme Court of Arkansas was correct in its analysis when it said we're not persuaded that the Constitution compels the board to ask scores or hundreds of questions one by one instead of making the blanket in, where it required in Act 10.

Chief Justice Earl Warren: Mr. Friday.

Argument of Herschel H. Friday, Jr.

Mr. Herschel H. Friday, Jr.: Your Honor, unless the Court has any questions, (Inaudible)

Chief Justice Earl Warren: Mr. Dunaway.

Rebuttal of Edwin E. Dunaway

Mr. Edwin E. Dunaway: If it pleases the Court, just a word or two.

First, I'd like to observe that constitutional rights and the invasion of constitutional rights is not to be determined by the number of those who are willing to have them invaded without going through the unpleasantness of an extended lawsuit in order to vindicate them.

So the mere fact that a number of Arkansas school teachers, rather than contest the thing themselves, went ahead --

Justice Felix Frankfurter: Let somebody else do it -- let somebody else do it.

Mr. Edwin E. Dunaway: Let -- let somebody else do it and we will get the benefit.

Mr. Justice Black, I find that I do have --

Justice Felix Frankfurter: (Inaudible) independent on the part of people.

Mr. Edwin E. Dunaway: Sir?

Justice Felix Frankfurter: (Inaudible) independent on the part of people.

Mr. Edwin E. Dunaway: I find that I do have a copy of my brief in the Arkansas Supreme Court.

I don't have all of them which I'll leave.

I pointed out in the argument that they're -- they were arguing on the -- no automatic dismissal.

While it was true that there's no automatic dismissal and neither is there anything in the provision to provide that the affidavit spiraled with the information contained therein should be held confidential by the school authorities.

And consequently, any school governing body on its own initiative or when subjected to pressure from certain self-appointed guardians of the public wheel which not only the truth showed but which we all know are currently operating in Arkansas, they will make public such affidavits in whole or in part.

The question was put to the Court and I read the Arkansas Supreme Court's opinion only as Mr. Light says as a caveat but it is certainly not a holding that the information must be kept confidential.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: My recollection is, they didn't take any position because it didn't argue -- because the Attorney General's letter was in the record there that in his opinion, it was up to each individual board.

Finally, and --

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: Yes, yes.

Justice Felix Frankfurter: That means that the Supreme Court of Arkansas sua sponte made its restriction (Inaudible)

Mr. Edwin E. Dunaway: To the extent that it is restriction, yes, Your Honor.

In every other case where this Court has sustained inquiry -- the right of inquiry and to personal associations of teachers and other public employees, it has been on a narrowly restricted basis as in the Beilan case where the discharge of Beilan was approved for incompetency this Court pointed out that the inquiry was made and no publicity was given to it.

It seems to me that if this Act is sustained, the Court is going further than it ever has in permitting a very real indirect restraint on freedom of association which can be just as devastating to that right as a direct one.

And it seems to me that without -- in any way is weakening the right of public authorities to inquire under the loyalty and fitness of their employees, the Court can strike down and should strike down this Act as going too far of the question of requiring the authorities to ask individual questions.

There's no proof that there has been any problem as -- there's been no law of this kind and the person testified that there was no demand for such a law on the part of school administrative officials.

Justice John M. Harlan: Suppose in --

Justice Felix Frankfurter: And would you disagree or -- or will you comment on the suggestion that the information that is sought to be elicit under this Act, or information that could be elicited personally that --

Mr. Edwin E. Dunaway: I think that some of the information which is sought to be elicited here could be elicited in the personal in here.

Justice Felix Frankfurter: Which would you rule out as inadmissible in the personal interview?

Mr. Edwin E. Dunaway: For example, I don't think it would be a proper question to ask what religious organizations I made a contribution to just as an example.

Justice Felix Frankfurter: That wasn’t asked under this affidavit.

Mr. Edwin E. Dunaway: You have to list under this affidavit every organization of which you are a member, to which you pay dues or have made regular contributions.

There is no limit to it so a -- a contribution to your church would have to be listed whether or not you have contributed to the Republican or Democratic Party, would have to be listed.

I realize that this is a delicate problem of balancing and certainly (Inaudible) exactly each question which would or would not be within the realm.

But it seems to me that all this Court needs to hold now is that it is a balancing problem and this statute goes to the extreme.

Justice Felix Frankfurter: (Inaudible) from your point, you have to go beyond it and see.

Mr. Edwin E. Dunaway: Right, right.

Unknown Speaker: (Inaudible)

Mr. Edwin E. Dunaway: They do not, Your Honor.

Chief Justice Earl Warren: Gentlemen, I would like to say that you, counsel on both sides.

(Inaudible)