KEYISHIAN v. BOARD OF REGENTS

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Argument of Richard Lipsitz

Chief Justice Earl Warren: Number 105, Harry Keyishian et al., appellants versus Board of Regents of the University of the State of New York.

Mr. Lipsitz.

Mr. Richard Lipsitz: May it please the Court, Your Honors.

This case has come before the Court as a result of a complaint filed on behalf of the class of persons known as the Faculty of the State University of New York at the University of Buffalo, Buffalo, New York.

A complaint was filed following the requirement imposed upon the members of the faculty of that institution when that institution became a state institution in 1962 and previously having done a private plea owned, operated, maintained university at Buffalo, New York known as the University of Buffalo.

When it became a state institution in 1962, the officials of the State University of New York of which this was then a part applied for the first time to these particular faculty persons and others the requirements of what are known as the Feinberg Law of the State of New York.

The Feinberg Law of the State of New York is the subject of course of the Adler decision previously decided by this Court in 1952.

In our complaint, we attack again as was have done in the Adler case but in a much more comprehensive way and in a much broader scope as I might say, the entire complex of statutes administrative regulations procedures and certificates that have become known as the administration and application of Feinberg Law and more specifically we attack in our complaint Section 3021 and 3022 of the New York Education Law, Section 105 of the New York Civil Service Law, Article 18, Section 244 of the Rules of the Regents of the University of the State of New York, the current body over the trustees, the latter whom administered trustee institutions of higher learning, the former of whom the Board of Regents are responsible for the entire state education system.

And also we attack in our complaint the procedures implied -- applied rather by the various defendants to implement the complex statutes known as the Feinberg Law.

The facts of the case are as follows and they have to be, I suppose, discussed on two different levels, if I may.

The first level on which they should be discussed is what happened with the statute following the decision of this Court in the Adler case and in that respect, the facts are these.

As of the time of the decision of the Adler case, the Section 3022, the heart of the Feinberg Law as such was not applicable by its very terms to any employees whether they'd be faculty or other kinds of personnel to institutions of higher education.

The statute was applicable solely and wholly to institutions known as public schools which in New York State and elsewhere in United States are those considered to be elementary and high school.

In 1953 after the Adler decision, the New York State legislature added these words to Section 3022 of the New York Education Law and I quote, “In all other personnel and employees of any college or other institution of higher education owned and operated by the state or any subdivision thereof,” thus, making the statute, for the first time, applicable to university, college and college faculty, professors and other personnel.

Furthermore, this was --

Justice William J. Brennan: Does that make the issue here different than it was in Adler?

Mr. Richard Lipsitz: We say that it makes a different issue.

Yes, Your Honor.

Of course, I think it should be stated at the outset if I haven't made it plain and we are also attacking the entire statutory arrangements even as it was previously before this change in 1953.

Justice William J. Brennan: Yes, but I gather this what you've just said would be the predicate of an argument which you don't have to overrule Adler defined for you as to college --

Mr. Richard Lipsitz: That is -- that is correct.

Yes, sir.

The other changes occurred of which much was made by the decision of the court below, the three men court which heard this case about which we will see more later was that Section 12-a of the New York Civil Service Law that being the statute at the time of the Adler case was in 1958 changed to Section 105 of the New York State Civil Service Law and prior to the time of its change to becoming Section 105, it added a new provision.

That new provision is the second paragraph of 105(c) which may be found, if Your Honors care to look at it, at page 113 of our brief and also of course in the record.

And that Section added these words, “For the purposes of this section, members of the Communist Party of the United States of America or the Communist Party of the State New York shall constitute a prima facie” -- two words prima facie having been emphasized, “evidence of disqualification for appointment to a retention of any officer position in the service of the state or of any city or civil division thereof.”

That section -- that provision rather was not in the then Section 12-a of the Civil Service when the Adler case was before this Court.

It was added to 12-a subsequent to Adler and then was converted in the Section 105 of the Civil Service Law.

At the time it became 105 of the New York State Civil Service Law, there was also added subdivision 3 to formerly 12-a and now 105 and subdivision 3 is found at page 114 of our brief and also of course in the record and rather than quoting it from you, I will tell you that it adds to 105, a provision which -- but for one sentence is almost identical with the provisions of Section 3021 of the New York Education Law.

The one sentence which is added as a reference to a definition of what is meant by any treasonable or seditious act or acts to the New York Penal Law, Sections 160 and 161 but which will not expressly refer to are the sections of the New York Penal Law where the definitions of these terms could be found.

We are not here attacking as such the constitutionality of Section 160 and 161 of the New York Penal Law.

We, however, in our argument will suggest and indeed point out that if the interpretation of this subdivision 3 of Section 105 is dependent upon an interpretation by somebody of this Court or otherwise of 160 and 161 of the Penal Law that Section -- subdivision 3 is of course unconstitutional for being indefinite and a restriction on First Amendment rights.

Now those, Your Honors, are the statutory changes in which I referred to as the level of facts that can be best described in this fashion that have occurred since the Adler case.

I would like to stress one thing which I think -- we do think deserves some mentioned and that is this, that when those words were added to Section 3022, that is to say their application to any personnel or employees of any college or rather institution of higher education, there was no claim by the New York state legislature that there was any present prospective future, potential or otherwise any kind of danger, imminent or about to occur to those institutions.

They didn't even refer to the fact that they have made findings in 1949 relating to the alleged fear, danger and imminence of so called infiltrations of the public schools system by the persons who would be following some subversive course of conduct.

They not only didn't refer to it, they didn't rely upon it.

They just put it in the statute without any legislative reliance, finding or investigation.

Chief Justice Earl Warren: Do they have to do that?

Mr. Richard Lipsitz: As a matter of law.

No, sir.

Chief Justice Earl Warren: Do they have any findings?

Mr. Richard Lipsitz: No, sir.

But as a matter of determining whether or not as we would argue, there is some basis for the state acting in this field that is to say in the field of First Amendment rights, we say that it indicates a lack of any compelling need to allow at the kind of invasion of First Amendment rights which the Court has from time to time allowed because of a demonstration of need but we don't claim that there is any constitutional requirement that a state legislature make a finding.

We say that however that it does have an impact upon whether or not there was any basis for allowing and there is any basis at the present time for allowing an invasion of First Amendment rights of persons who happened to be university and college or teachers and other faculty.

Chief Justice Earl Warren: I suppose you tell us by university students are less subject to submersion and children.

Mr. Richard Lipsitz: If you're suggesting -- if I understand Your Honor, Judge Warren -- Justice Warren, you're asking me to explain it now or you're saying later on?

Chief Justice Earl Warren: Oh, you may take it from due course.

Mr. Richard Lipsitz: No.

Well, we don't make any claim in our brief as such although other briefs do that there is a less susceptibility.

There is no -- I will argue with you and to you that there is less susceptibility.

What I'm saying is that there is no demonstration that there is anybody employed or about to be employed in the state university system from which this alleged danger would have occur that was found to be a fact in regard to the public school system.

It's not a question of whether there is a bigger or less susceptibility on the part of students although that is an issue that can be argued in terms of academic freedom that persons as they grow older become more mature and should be able to accept different points of view much more readily than innocent in younger school children.

Now, the facts that occurred in regard to the particular plaintiffs are these.

Each of these particular plaintiffs had been employed by the then University of Buffalo in one capacity or another at a time when it was the University of Buffalo and private institution.

There were of course was no requirement that they subscribe to anything, signed anything or otherwise provide any information except as to their professional competence or fitness to become employed at the time of hiring.

One of them, plaintiff Starbuck who is treated somewhat differently by the state and therefore has had a different history in respect to what's happened to him was employed as a librarian.

It is claimed by the state and was so found by the court below that his employment was not an academic employment and that therefore his employment was not subject to Section 3021 or 3022 of the Education Law but rather he was in the case of any other civil servant of the State of New York under the provisions of the Civil Service Law to be qualified or disqualified from employment by virtue of the provisions of Section 105 on New York State Civil Service Law.

He was asked after having been employed.

In other words, excuse me, after he became employed, I must show the correction.

He was the one person employed while this institution was a public university.

He became employed after the merger, the only one of the plaintiffs.

And when he was employed, he was employed without any requirement that he signed anything or answer anything but along after several months of employment, he was asked the question that appears at page 65 of our brief and otherwise in the record in which the question based strictly upon the statutory provisions found in Section 105 and that question was, “Have you ever advised or taught or were you ever a member of any society of group of person who taught or advocated the doctrine of the Government of United States or of any political subdivision there shall be -- should be overthrown or overthrown by forced violence or any other unlawful means?”

He declined and refused to answer that question whereupon his employment was threatened to be terminated.

He in fact brought a lawsuit of his own that is as the sole plaintiff in Federal District Court to seek in juncture relief against it.

That lawsuit was thereafter abandoned in favor of his becoming and joining as a plaintiff and this lawsuit which is before the Court.

Justice Potter Stewart: Did he give --

Justice Hugo L. Black: What's the ground of his refusal to answer that question?

Mr. Richard Lipsitz: He stated that he felt it was an infringement upon his conscience and that it was unconstitutional requiring him to answer it.

He did this however not before any --

Justice Hugo L. Black: Unconstitutional under what division?

Mr. Richard Lipsitz: Well Your Honor, I think his answer is in the record.

Justice Hugo L. Black: Well, I just --

Mr. Richard Lipsitz: He gives his own statements which he appended to the answers.

Justice Hugo L. Black: Wasn't that in the Fifth Amendment?

Mr. Richard Lipsitz: No, sir.

That was not the issue at all as far he was concerned.

However, he didn't do to support of any hearing.

On the back -- as I recalled on the back of the form, he put down some reasons why he, George Starbuck declined to answer this question.

Justice Byron R. White: And what was the question?

Mr. Richard Lipsitz: Have you ever advised or taught or were you ever a member of any society of group of persons who taught or advocated the doctrine of the Government of the United States should be overthrown by the course of violence or other unlawful means, and his objections I can point out to you in a minute after we check the record.

The other four plaintiffs --

Justice Potter Stewart: Did he make any request for a hearing on this refusal?

Mr. Richard Lipsitz: He made a request for a hearing.

Yes, sir.

But it was claimed that he's a temporary employee and otherwise that he had no right to a hearing on this issue.

He was temporarily employed, it was claimed by the state and therefore as a temporary employee he had no rights to hearings of any kind.

The answer is it's difficult to read but it's found at exhibit which was contained at portfolio 299 of the record where in his own handwriting, he says that he prefers not to answer or at least into the necessity and relevance of this question is properly explained to me, initials G.S.

That's the answer that he gave them.

The other four plaintiffs, if I may Your Honors, were all persons who are employed as faculty members.

Let us say teachers of one subject or another in the state university and they declined to sign what are known as in this litigation and prior thereto the Feinberg certificates.

Now, the Feinberg certificates, Your Honors, are found in our appendix at pages 122 and 123 and also in the record.

And the Feinberg certificates required when presented to the plaintiffs that they sign after having read the statements which appear thereupon.

Each of the four plaintiffs declined and refused to sign the Feinberg certificates.

They were threatened with the dismissal and I don't use the word threatened in a menacing way, they were told that they were going to be dismissed because there was an obligation on their part to sign this.

They then joined as plaintiffs with Starbuck and this lawsuit was commenced seeking to declare the entire system statutes unconstitutional.

Justice Potter Stewart: Well, is there not?

Justice Byron R. White: Perhaps if you -- do you have a record reference on the Feinberg certificate that you have used everytime --

Mr. Richard Lipsitz: You mean where it's set forth, Your Honor?

Justice Byron R. White: Yes, what the certificate says.

Mr. Richard Lipsitz: It says that at 122 and 123 of the brief, also Your Honor, we reproduced in the appendix.

Justice William J. Brennan: Well, what issues refer this to 212 or it's fully at 125?

Is that one of them?

Mr. Richard Lipsitz: No.

That was the one that Starbuck was required to sandwich the civil service questionnaire.

Justice William J. Brennan: The other one where --

Mr. Richard Lipsitz: It's in our brief which I happened to have the references to page 122 and 123.

Justice William J. Brennan: And?

Mr. Richard Lipsitz: You will also find in the record that the identical documents that you find in 122 and 123.

Justice John M. Harlan: What were the grounds of their refusal to sign certificates?

Mr. Richard Lipsitz: Their grounds are --

Justice John M. Harlan: Same as what --

Mr. Richard Lipsitz: Yes, plus the fact that they felt that it was invasion of First Amendment rights.

Justice John M. Harlan: No claim of the Fifth Amendment.

Mr. Richard Lipsitz: The Fifth Amendment was not involved in this sir.

As a matter of fact Your Honor, to make it perfectly clear, there has never been a claim at any time by anybody in the employment of the state system that there was a fear of apprehension that these people maybe giving evidence against themselves by virtue of having being required to sign this.

They did not rely upon the Fifth Amendment rights except as far as due process of law is concerned and not the self-incrimination.

Now, those are the -- I think perhaps it's really fair to say that the state has through forbearance exercise in its part in taking the position that it would not discharge any of the plaintiffs except Starbuck who was dismissed until this litigation is disposed of through the court system, solely for their failure to have signed the certificates.

Now then, when this action was commenced --

Chief Justice Earl Warren: And they are in the State Service --

Mr. Richard Lipsitz: Well, one of them was an appointment for a year the lead case Keyishian and his employment was not renewed so he is no longer there but it is not an issue in this lawsuit as to whether it wasn't renewed because of his failure to sign it.

The state says that we show under our own procedures not to renew them and one has left voluntarily to take employment at another institution outside of the state system and that's plaintiff Maud and the other two are still there in the sense of any outcome of this lawsuit.

The --

Justice Byron R. White: What are they threatened with, with those two who are still there?

Mr. Richard Lipsitz: They are threatened with discharge but that isn't the whole answer Mr. Justice --

Justice Byron R. White: I thought the state have said -- I thought the state had given up the --

Mr. Richard Lipsitz: I'm going to come to that in a minute.

I'm going to come to that in a minute but nevertheless, they still have this threat discharging over their head.

Justice Byron R. White: On what ground?

Mr. Richard Lipsitz: If I will explain in this fashion.

After this lawsuit was started, it was dismissed for failure to state any substantial question.

It was then appealed to the Court of Appeals of the Second Circuit, a complaint was reinstated by decision written by Justice Marshall and it came back and it was tried before the three men court.

One week before the trial was to have been commenced before the three men court, the state adopted a new policy for administering the so-called Feinberg Law and that new policy is found at pages 124 and 125 of our brief that is also found elsewhere in the record.

And that new policy withdraws the certificates so that as of that time although we don't know and there's no human being can assert with the certainty that the certificate requirement will never again in the future will be reintroduced in the state system.

At that time, the certificates were withdrawn and in there place, the procedure set forth was made -- the manner of administering the Feinberg Law for the state university.

But in answer to your question Justice White, the paragraph which appears in the middle of page 125 reads that and I'm not going to quote it but nevertheless that no presently employed person and that is to say our plaintiffs shall be deemed qualified or ineligible “Solely by reason to such failure”, referring to the failure to sign the so-called Feinberg certificates.

So this isn't out of the case.

This is an element to be considered in terms of their continued future employment when and if the time comes that the state is going to determine as a result of following the conclusion and the decision in this lawsuit what to do with this plaintiffs.

It says it shall not solely be, it doesn't say shall not be so that our answer to the question is they're still threatened and it would be imminence of dismissal if this law should be declared on Constitution.

Justice Byron R. White: Is this paragraph where you rely on now as evidencing an effort of the statement forcibly followed against the particular appellant?

Mr. Richard Lipsitz: No.

We object of course to the new procedure as well as to the old procedure and we claim that the laws are all unconstitutional for the reasons that we will argue in the remaining time and in the brief.

They -- these new procedures, it does not appear on the record have or haven't been applied to the present plaintiffs and if you will remember, they were introduced one week before the case was tried and there's nothing in the record one way or another to indicate what's going to happen to this plaintiffs if the new procedure is to be applied to them.

We don't know what's going to happen to them but they still have to guide themselves according to what they have been told as now the method of enforcing the statute.

That is to say that they must comply with in on all time considered that they are eligible to be retain an employment only if they understand and agree that the rules of the regents in the various statutes are part of their conditions of employment.

That's set forth a new procedure so that we don't rely just upon the words solely.

We rely upon the fact that they too as well as any other employee of the state university is now subjective to this new procedure which we don't claim or it's considered as any as more superior in a constitutional sense in the old procedure.

Now, those if I may Your Honors, are the facts that have been involved in these plaintiffs in these cases.

I like to turn now to the --

Justice John M. Harlan: When you come to -- through your protecting (Inaudible) --

Mr. Richard Lipsitz: If the answer to that question Mr. Justice Harlan is that there has been an expression by a substantial number of faculty members some 300 to 400 out of a total faculty at that institution of approximately a thousand that an expression was took place in the form of a resolution condemning the requirement that they have to comply with the Feinberg Law.

Only these persons, the plaintiffs have refused outright to comply with.

They have exceeded.

They have gone along.

That is to say those employed at the time went along with it and said rather than that we will sign.

Now, we claim in our briefs and we argue before the Court that these statutes certainly should be declared to be unconstitutional as an infringement upon First Amendment rights as a bill of attainder and for lacking of due process in regard to all persons affected by these statutes including the plaintiffs.

We particularly argue in this case of course the current constitution in respect to institutions of higher learning or reasons that there has been no demonstration of any need of going or otherwise to invade First Amendment rights and that there is an expression joined quite imminently by this Court in a number of cases since Adler that academic freedom has a right to cherish and to be fully protected under the First Amendment.

As -- on this -- on the question of whether or not the First Amendment rights of these plaintiffs are violated, we of course, rely upon all of the cases on this subject which had been decided since Adler and which without suggesting to Your Honors although the question was asked that it is necessary to overrule Adler nevertheless indicate that this Court has departed in some substantial measure from the standards of Adler and I don't need only to refer to the acknowledgment of the minority of this Court itself in the Elfbrandt decision were it states and at one portion of the Elfbrandt decision that though the majority did not purport to overrule or delimit Adler, at the end of the decision nevertheless the minority decision in effect says but that's about what they did by virtue of the decision.

Now, in what fashion has this Court departed from what appears to have been what was the law at the time of the Adler decision?

The answer is this, we think.

Firstly, Adler states and it states as plainly as can be that there is no right to public employment, that if the person doesn't like what he's required to submit to as an employer of the state, he has a perfectly free choice to go elsewhere.

This Court and I need not to spend the time going into the decisions that have been written on the subject as quite candidly and expressly stated in subsequent decisions that unconditional, that unconstitutional conditions may not be imposed upon public employment anymore than it can be on any other public right.

In the doctrine that if you don't like what you have to do in order to become employed by the state, you can go elsewhere is no longer we think the law as expressed in a number of cases decided subsequent to Adler.

One of which of course Elfbrandt and other which is the case decided from Oregon on the same subject the Baggett and Bullitt case.

In addition to which in other areas, it has been quite clear that the Court has apparently taken this position.

But more importantly than that and we have attempted to analyze the complex questions that are presented by the Section 105 requirements and we do that starting at page 35 through 37 of our brief.

The requirements imposed by Section 105 in New York State Civil Service law just as much now as I work for the time of Adler though not brief nor argued before this Court as our research indicates when Adler was argued, the requirements of 105 are so vague, are so contradictory and indeed are so overreaching in our view that they cannot add by themselves constitutionally be sustained for instance and I won't go into all of the various considerations that are present in Section 105 but it appears that merely embracing the doctrine, the Marx's if you will, the government should be overthrown by force or violence is a ground for disqualifying a person from public employment not by doing of an act but the embracing of a doctrine and this is as clear as clear can be from the provisions of Section 105 if one carefully reads and analyzes them an I refer to the provisions of Section subdivision 1(b).

Section 1(b) of -- subdivision 1(b) of the Civil Service Law Section 105 also makes it unlawful to print, publish, edit, issue or sell any book in which the doctrine is contained.

Well, at the same time advocating or embracing that is to say having the belief of the duty.

Now, we say for a variety of reasons the whole section is unable to be sustained constitutionally based upon present standards of this Court.

I would turn now to the argument that we think is a key to the decision of which -- when it is made in this case and that is this.

The state has taken the position very proudly that unlike other loyalty complexes from other states, New York State has provided the optimum of due process because all that New York State says is that the person who has been or is a member of the subversive organization, in this case the Communist Party, is only prima facie disqualified from either becoming employed or retaining employment.

And by virtue of those two words Your Honors, the state claims that there's nothing wrong with the entire system provided for under Section 3022.

We claim that this doctrine in a sense imposes an impossible burden upon the persons involved who if some of them were to concede or admit that they are members of the Communist Party could over -- only overcome this burden in the words of the United States -- of the New York State Court of Appeals and one of the three cases which became known as Adler.

They can only overcome it in the following fashion, (a) by proving that the organization is not subversive an impossible burden in any hearing because they don't have acknowledgment against the forces of the state which has already proved this to its own satisfaction, the ability of the individual to prove that it is not subversive as an impossible burden or (b) denying membership or (c) denying knowledge of the aims and goals of the organization.

According to the Lederman decision, one of the three cases involved in Adler, these are the three things that are necessary to overcome the presumption.

There is absolutely had been no consideration given to the facts as evidence by the Elfbrandt decision, the Aptheker decision, the Scales decision the Noto decision of this Court that innocent knowing membership cannot be and should not be the grounds for disqualifying anything neither employment as a teacher Elfbrandt nor ability to obtain a passport, Aptheker.

The State of New York has said in its right in the decision.

Justice John M. Harlan: (Inaudible)

Mr. Richard Lipsitz: No, sir.

Scales and Noto merely stood for the doctrine as we understand that it takes more to convict one of being a member under the membership clause than mere knowledge of the aims of the organization.

It must take activity in pursuance of the unlawful aims.

The State of New York doesn't say that.

It says that you -- to overcome this presumption, you have to prove that the organization wasn't subversive that you were a member of it but that you didn't know its aims and to neglects completely to consider what is now the law as we see it in terms of the rights that have been created by these other decisions that innocent knowing membership cannot be the grounds for disqualification which is the Elfbrandt decision.

Now, we say that the so called doctrine of rational connection in this field which has been used to justify the upholding of prima facie presumptions if you will and shifting the burdens to the person seeking employment as a doctrine which not only should not be applied to the field where the First Amendment rights of speech or association that are involved but indeed there is no rational connection between what has being done by the state here and what we claim as the fact by virtue of the fact that the state has never demonstrated that anything involving membership in any organization is the equivalent of disqualifying or should be the equivalent of disqualifying a person from teaching.

Furthermore, it is our claim, as I mentioned at the outset that the -- under the Brown decision, the effect of the state legislature in 1958 now said that members of the Communist Party are ineligible to all office in the state constitutes a bill of attainder and as such it is constitutionally defective.

While it is true that the Court in Adler upheld the proposition that an administrative agency could make a finding, it did it at a time before it was determined how it was going to be done and what manner of means are going to be used as Justice Frankfurter stated in his dissent before the statute had anything but its bare bones on it.

But in any event when the legislature in 1958 said legislatively no person who is a member of the Communist Party shall be eligible or that is to say membership shall be prima facie evidence of ineligibility.

The legislature said as did the Congress in Brown against the United States that this means a person is ineligible to be employed in the state university.

We thank you very much.

Chief Justice Earl Warren: Ms. Iles.

Argument of Ruth V. Iles

Ms Ruth V. Iles: May it please the Court.

I represent the Attorney General of the State of New York appearing in support of the constitutionality of the statutes which are here challenged.

Mr. Crary, the state university counsel will argue the case on behalf of the state university and the procedures adopted by it to implement these statutes.

It is the position of the state in this case that the constitutionality of these statutes, the Feinberg Law that is Education Law Section 3022 has been upheld by this Court in the Adler case and that there have been no changes in the law since that case which would warrant a different decision here.

The Feinberg Law was first enacted in 1949 to eliminate from the states public school system as teachers, persons willfully and deliberately advocating the overthrow of the government by force or violence.

Such persons were already ineligible for service in the public -- in the state employment but the Feinberg Law was intended to implement the disqualification under Civil Service Section 12-a which had been on the book since 1939 by providing procedures whereby the public school teachers and the Board of Regents would implement Section 12-a of the Civil Service Law.

The only change in the Feinberg Law since 1949 and since the Adler case has been the fact that now instead of just public school teachers being covered employees of the state university institutions of higher education of the state had been covered in and a requirement has been added that the Board of Regents report annually to the legislature in the effectiveness of the Act.

Civil Service Law Section 12-a has been amended once since the Adler case, that was in 1958 when they added to Section 12-a, a provision that membership in the Communist Party would be prima facie evidence of disqualification for state service.

The only other change in Section 12-a is that in a general recodification of the Civil Service Law in 1958, Section 12-a of the Civil Service Law was renumbered as subdivisions 1 and 2 of Section 105 of that law.

Appellants in an attempt to avoid the ruling in the Adler case seek to make this case a challenge to the constitutionality of every statute ever enacted in the State of New York having to do with subversive activity.

For example, they challenge the language of Section 160 and 161 of the Penal Law relating to criminal anarchy but this is not a prosecution for criminal anarchy.

What's more, those sections have been repealed by a general revision of the New York State Penal Law and effective in 1967 they will no longer be the law of New York State.

Appellants also challenged the language of Civil Service Law Section 105 subdivision 3 relating to removal from public office for sedition.

But this is not a charge of sedition and these persons have not been charged with treasonable or seditious acts or words.

Section -- Subdivision 3 of Section 105 was formally subdivision, was formally Section 23-a of the Civil Service Law has been on the books a long time was on the books when the Adler case was decided and is not new to the law of the State of New York.

The Feinberg Law and the rules of the Board of Regents however continue to refer only to Civil Service Section 12-a or subdivisions 1 and 2 of Civil Service Law Section 105.

These relate only to the disqualification of persons for service in the state service for advocating deliberately and willfully the overthrow of the government by force.

We are concerned here only with the hiring of personnel of the State University of New York and whether they are qualified or not and we contend that subdivisions 1 and 2 of that section are the only ones with which we are here concerned.

Thus, our inquiry is only whether a state statute may disqualify a person for employment in a state college if he deliberately and willfully advocates the overthrow of our government by force and violence which is all that the Feinberg Law in Section 12-a do as far as these persons are concerned.

Justice Abe Fortas: Ms. Iles, excuse me.

Do I understand that -- do I understand you to say that New York Penal Law Section 161 is not relevant here?

Ms Ruth V. Iles: I contend that it's not relevant.

On page 16 of my brief in a footnote, you will see a reference to the fact that these -- there has been a general revision of the Penal Law of the State of New York.

Sections 160 and 161 have been repealed effective in 1967 and there will be a new provision relating to criminal anarchy with an entirely different definition as of them.

The definition is in the footnote on the bottom of page 16 of the brief.

For this reason, I feel that in interpreting, I don't feel that subdivision 3 of Section 105 of the Civil Service Law is pertinent but certainly even if it is pertinent, it seems to me since it relates to the removal of the persons for sedition, it would be something which this Court would abstain from deciding under the course of New York have interpreted these new Sections and it would certainly seem premature here where no such question is involved in the controversy.

As I say -- said, all we are concern with is an inquiry as to whether a state statute may disqualify a person for employment if he deliberately and willfully advocates the overthrow of the government by force.

This is exactly the same question which was decided in the Adler case where this Court held that a person may be denied the privilege of working for the school system of the state of New York if he advocates unlawful overthrow of the government.

Justice Byron R. White: What about membership -- what about membership in an organization which gave this advocacy?

Ms Ruth V. Iles: In the Adler case, in construing this section of the law which I might add as exactly the same as it was at the time of the Adler case, this Court said they would rely upon the construction placed upon that section by the courts of the State of New York.

The courts of the State of New York said that it had to be knowing membership in the organization but the person must not only know it, he must know its aims and purposes and they interpreted its meaning that the person subscribe to it and that if a person was a member and could explain his membership, he would not be disqualified.

Justice Byron R. White: You mean mere membership is not enough or mere knowing a membership is not enough.

Ms Ruth V. Iles: No.

In the Adler case, they said it had to be ‘knowing membership' -- knowing the aims of the organization.

Justice Byron R. White: Now, let's say -- assume you know the aims of it, is that enough?

Ms Ruth V. Iles: Then there is a hearing to see -- under the Adler case it said, he would then be given an opportunity to explain whether he had ever been a member, whether he was now a member.

Justice Byron R. White: What if he comes in and says, “Well yes, I know exactly the aims of the party.

I just don't have to agree with them.”

Ms Ruth V. Iles: Well, implicit in Section 12-a and I believe in the Feinberg Law is that they advocate.

They must be active and deliberate advocacy and this is one of the tests for advocacy.

Justice Byron R. White: Do you think -- do you think that New York courts construed this to mean that person not only must know the aims but he agrees with them and furthers them.

Ms Ruth V. Iles: Yes, and they say there is a presumption when a person joins an organization knowing of its aims that he subscribes to its aims and this is something the school authorities would then pursuit further once they determine that he was a member of the organization.

Appellants rely upon cases decided by this Court since Adler were proscribed activities and oaths have been stricken down as an infringement upon constitutional guarantees.

We submit that the cases relied upon are distinguishable from our present case.

For example, this Court had stricken down statutes where there was no overriding state concern in the activity the state sought to limit or where the activities were proscribed in such broad terms that other fundamental rights were unnecessarily interfered with or where as in the Elfbrandt case, a person became liable to criminal penalties for knowing membership in an organization without proof that the person subscribed to its unlawful purposes.

Two cases which -- upon which appellant also relies heavily are the Cramp and Baggett cases where the loyalty also were required in language which is so vague that there was no objective way to determine guidelines for conduct.

We have no such vague language here.

We submit that the New York statute declares ineligible for employment only those person who willfully and deliberately advocate, teach or advice the overthrow of government by force, violence or unlawful means and this has been interpreted by the New York courts to be 'knowing advocacy'.

New York has confined itself to a sphere of legitimate inquiry about conduct which is proscribed in narrow and clear terms to accomplish the desired end and we submit that the right of the state to protect the public service from disloyalty in this manner should be sustained again as it was in the Adler case.

In my opponent's reply brief, he has referred to the fact that 105 is now 12-a.

We submit as I did in the argument that 105 is now only subdivisions 1 and 2 of 12-a, and this appears clearly in the note and table of distribution at the end of the Chapter 790 of the laws of 1958 when it was enacted and in such Section 185 of that Section, there is a provision that where there is a reference in any law as there still is in the Feinberg Law and in the Board of Regents rules to Civil Service Law 12-a, it continues to refer only to the subdivisions which were formerly 12-a when it was recodified into the new Civil Service Law.

Justice Byron R. White: Did you -- what state court opinions do you rely on for the construction of these laws to the effect that you stated awhile ago, is it Adler?

Ms Ruth V. Iles: There was -- Adler case and the Thompson against Wallin, and Lederman and Lamado which were the Court of Appeals decisions which were affirmed in Adler case so construed the statute.

There has also been a case since then -- Board of Higher Education against Allen in 6th New York --

Justice Byron R. White: Is in your brief?

Ms Ruth V. Iles: I don't believe that citation is.

6th New York 127 where --

Justice Byron R. White: 6th New York --

Ms Ruth V. Iles: 127 but the Commissioner of Education sent it back to the Board of Higher Education.

Justice Hugo L. Black: Is that 2nd or –-

Justice Byron R. White: 6th New York 2nd --

Ms Ruth V. Iles: 6th New York 127.

Justice Byron R. White: Do you think the three-judge court agreed with you assuming --

Ms Ruth V. Iles: On the revision of this section?

Justice Byron R. White: On the construction of these sections by the state boards.

Ms Ruth V. Iles: That the three-judge court went further than I believe they had to go because they went into the merits of the controversy and they discussed subdivision 3 of Section 105.

It was raised below.

Justice Byron R. White: As I read the three-judge court opinion, it seemed to me that the court thought that the New York law would justify discharge for mere knowing memberships and you say that is not so.

Ms Ruth V. Iles: I say that is not what the Adler case said.

Justice Byron R. White: How about the --

Ms Ruth V. Iles: But --

Justice Byron R. White: -- but what do you mean -- we were talking about the New York law though.

Ms Ruth V. Iles: Well, the Adler case said that they were bound by the construction placed on the New York by the Court of Appeals and in this case, it has been in the federal courts all along and there has been no construction of that by any of the state courts in this case and this Court has said we are bound by the construction --

Justice William J. Brennan: Now but this not the three-judge court here say that the reach of the decisions of the New York courts was to commit the charge for mere knowing members.

Ms Ruth V. Iles: I believe they did -- I do believe they went that far.

Justice William J. Brennan: Well, then they don't agree with your interpretation of what the decisions of New York court --

Ms Ruth V. Iles: I would say that's experimental.

Justice William J. Brennan: -- are, is that it?

Chief Justice Earl Warren: Mr. Crary.

Argument of John C. Crary

Mr. John C. Crary: May it please the Court.

I -- I am counsel two and represent the State University of New York.

I distinguish the State University of New York from the University of the State of New York because there is often confusion about it even in New York.

Justice William J. Brennan: I'm confused now.

What is it?

Mr. John C. Crary: The Board of Regents is the governing board of the University of the State of New York.

It is a corporation which has existed since 1784 which is the head of New York Education Department under the New York constitution and which in that capacity have supervisory and regulatory authority overall education public, private, elementary, secondary and higher in the state.

The State University of New York on the other hand is a corporation created in the education department.

A public corporation in the year 1948 for the purpose of administering state operated and supported higher education in the state.

It is the Board of Trustees of that corporation which I represent and which administered these statutes in the manner which had brought this case to this Court.

The -- I also represent administrative officers of the university including its new president, Samuel B. Gould who took off as of 1964 after this case had risen.

I apologize for my cold.

My concern is to -- we rely upon the Attorney General's position, who has the duty of defending the validity of New York statutes and we rely upon and support the position which the Attorney General has taken in this case in support of this statute.

My concern here is to attempt to demonstrate to the Court that the university in carrying out the duties which became imposed upon it by virtue of those statutes has carried them out in accordance with their valid purpose and without imposing, super imposing upon them any requirements which in and of themselves could be construed as being beyond the needs of the statutes or in any way unreasonable or violated of personal rights.

In 1953 after this Court's decision in Adler, the Board of Regents proceeded as the statute required it to do to hold hearings upon others and to make listings of those organizations which you'd found to be subversive within the meaning of the New York statute then 12-a of the Civil Service Law now Section 105 because the only thing which the Feinberg Law did was to implement that statute.

The Feinberg Law itself did not make any definition of subversion.

It merely provided a procedure for implementing that disqualification for employment by the State of New York which had long been contained of Section 12-a of the Civil Service Law and it did interest this Court knows from its consideration in the Adler case by providing or upon notice in hearing listing of organizations found to support those illegal objectives of force to overthrow the government.

After the hearing, the listing -- the organizations listed were two, the Communist Party of the State of New York and the Communist Party of the United States.

The regents duly listed them, promulgated them, put it in their circular in which the Feinberg Law was explained to the schools to which it applied and thereafter the presumption which Adler had said was proper.

It was proper to infer the fact from the facts found, the ultimate fact from the facts found.

Thereafter there was a presumption under the New York statute that those organizations -- that member -- knowing membership in those organizations disqualified – this knowing membership disqualified for employment in the public schools.

Now in as much to answer one of Your Honors question, in as much as all the Feinberg Law does is implement the Civil Service Law and the Civil Service Law itself requires knowing advocacy by the individual.

My own feeling and I think the university's construction of the statute has not been that mere membership susceptible of being innocent is sufficient.

It must be a membership which presumptively supports the objective, the illegal objectives of the party but in which the member individually shares because that's what the Civil Service Law dis -- that's the disqualification of the Civil Service Law individual advocacy of the violence or otherwise unlawful overthrow of government.

Justice William J. Brennan: Well, let me see if I understand it.

You start out with a finding that the two organizations, New York and United States advocate and preach the --

Mr. John C. Crary: The finding not made by my university but by the Board of Regents.

Justice William J. Brennan: That's the finding that's been made under the Civil Service Law, is that it?

Mr. John C. Crary: Yes.

Justice William J. Brennan: And then under the Civil Service Law, a disqualification -- this general disqualification not only for teaching but for all employees.

Mr. John C. Crary: For all public employees.

Justice William J. Brennan: Is only of those persons who personally advocate knowing overthrow.

Mr. John C. Crary: Knowingly, deliberately the unlawful overthrow of the government.

Justice William J. Brennan: And I take you have such persons even though they are not members of these or the other two organizations.

Mr. John C. Crary: Of course, Your Honor.

Justice William J. Brennan: And then you go on and say under 105 that if one -- there is a presumption that if one is a member of a particular of one of the two organizations, is it?

Mr. John C. Crary: Knowing of its objectives, he presumptively supports those objections.

Justice William J. Brennan: So this -- so you arrived at the conclusion that he is an individual who advocates violent overthrow on the basis of a presumption from his membership in one of the two organizations.

Mr. John C. Crary: Yes, and because this is a presumption and only a presumption, it's susceptible of being overcome and in the Thompson against Wallin case which was one of those affirmed in Adler, the Court of Appeals of New York specifically said, because it's only prima facie, this imports the hearing at which the countervailing evidence can be given.

And it says that countervailing evidence goes forth, the presumption disappears.

Justice Byron R. White: But if you -- but if in the proceeding for a discharge or removal, you presented evidence of membership, knowing membership and arrested and he presented no evidence, he would be discharged.

Mr. John C. Crary: I think the presumption then would prevail.

Yes, Your Honor.

Justice Byron R. White: But if he came in and explain to the -- or explained in a way that somebody were to believe that he did not engage in advocacy personally why he would not be discharged.

Mr. John C. Crary: If there were affirmative evidence on his part to that effect, then I think Thompson against Wallin says he has overcome the presumption and the presumption disappeared but then if he is still declared ineligible to be appointed or is then held to the -- is then discharged because of this, the burden he is then entitled to a hearing under Section 105 of the Civil Service Law which is expressly provided for him by that statute in the Supreme Court of the State of New York in which the burden is on the removing officer to show that he is disqualified and I think that to show that he was disqualified would require showing that he did those things which you proscribe by 105 --

Justice Byron R. White: You mean you couldn't rely on the presumptions --

Mr. John C. Crary: Namely person -- what if -- as I read Thompson against Wallin, this Court of Appeals has said, the presumption arises once it appears that he is a knowing member of the organization and when it arises, it imports -- one is relying on the statutory hearing under 105, it imports a right to a hearing at which he may produce evidence to overcome the presumption.

Justice Byron R. White: But if --

Mr. John C. Crary: If he does so and if he is still discharged --

Justice William J. Brennan: That's because he doesn't do so?

That's the question.

Just take Justice White's case.

Mr. John C. Crary: Then I think -- then I think --

Justice William J. Brennan: Then 105 does him no good.

Mr. John C. Crary: -- that the New York statute with its presumption which presumes the fact, which disqualifies him and he doesn't overcome it and because this Court has I submit said the presumption is valid, he may permissibly be discharged.

Now, I'm coming Your Honor to the situation with respect to the university employees who even despite this could not be discharge where they have tenure under university procedure -- university policies even so they could only be discharged by being -- by the procedure provided in the university's policies for terminating a tenure as follows.

And that so, they -- I want to say this before my time expires.

They were not threatened with immediate dismissal.

The only thing that was ever said was that here is the thing which the university has the procedure it has done to comply with its own statutory duties under a statute of New York.

You are asked to comply with it, to give us the information we need to determine whether you are qualified.

When we get this information then either we can find that you are qualified or we can make the further inquiry which may be necessary and give you the opportunity to furnish us any further information which you may wish to but unless you give it to us, we cannot comply with our statutory duty and what was said to them was if you do not do this then we will have to make charges against him of insubordination and refusing to comply with the university --

Justice William J. Brennan: But what must not -- must that not that that procedure is a practical matter in the situation that Justice White pointed out.

You'd have no alternative on one basis or another but to terminate him, would you?

Mr. John C. Crary: Well, he would have -- the thing I think I am trying to make clear here is that those faculty employees who had tenure either term or continues would have a hearing and before a university body in which if they chose to refuse to reply and they could explain --

Justice William J. Brennan: That's when they'd be --

Mr. John C. Crary: -- they could explain it.

Justice William J. Brennan: -- I thought, yes.

Mr. John C. Crary: I think if Your Honor please the only other thing that I would wish to add is that the university having adopted this procedure in 1956.

There's been no precipitant haste by the university here.

There's been no drastic action that it has weighed its procedures carefully.

It's done so in an effort to comply with the state law by which its administrative officers by their own knows their bound and it had done so not by asking any oath because the certificate is not an oath.

It's an oath at all.

It didn't ask anyone to forswear his beliefs.

It didn't ask him to conform to any vaguely specify to ask him the very thing which the New York statute of the regents' procedure may have reckoned it.

Justice William J. Brennan: The sanction of one action from the people.

Mr. John C. Crary: Yes.

Yes, there would be Your Honor because I think under the university procedures which provide for hearing in the dismissal only upon notice of hearing which I have notice some hearing in the event of those who have tenure and temporary in terms -- temporary employees do not, term employees do.

They would get a hearing, yes.

Justice William J. Brennan: But there's no criminal penalty for cancelling purpose.

Mr. John C. Crary: I do not believe it would just to two persons under the New York statute but if he lied, I think this would be misconduct of the time which warrant is removed.

Justice William J. Brennan: You take it --

Chief Justice Earl Warren: I just like to ask one question Mr. Crary.

Suppose he admits his membership in a Communist Party and you rely -- relying on the presumption, require him to show that to overcome it that he isn't a knowing member in the sense that he advocates the overthrow of the Government by force and violence and he takes the stand and says, well, I did belong -- I did belong to it but I didn't subscribe to those things.

I just don't belong because there are certain things in the party that I agreed with and the board just said to him, well, we don't believe you.

You're discharged now.

Is it susceptible to that kind of action?

I don't accuse the university of doing it, but could it be done in that way without anymore testimony than that?

Mr. John C. Crary: I just like to think that the university officials would ever be arbitrary but let's assume actually that Your Honor's question that they were.

If that happened then I think 105 of the Civil Service Law itself say, if he is dismissed on that ground that he is a subversive then 105 says that he can go into the Supreme Court of the State of New York, bring in a proceeding, have that decision reviewed and the burden of showing that he is disqualified is on the university.

Justice Byron R. White: Without a --

Chief Justice Earl Warren: Yes.

Justice Byron R. White: (Inaudible)

Mr. John C. Crary: Without a --

Justice Byron R. White: And they have reason that the perfect evidence as to personal --

Mr. John C. Crary: Assuming that he has before the university brought forth countervailing proof.

Justice Byron R. White: I don't understand that the kind of presumption that he's claiming here is that any evidence that you get --

Mr. John C. Crary: It must be evidence in some proof Your Honor and not any.

Justice Byron R. White: Well, I don't think that you understand there and in saying or what did you do, I just when -- maybe what's the --

Mr. John C. Crary: Of course the state of his mind is only he knows but --

Justice William J. Brennan: Or in the course of situation where he has to, where he takes the stand that he said “I am a member of the Communist Party, I don't deny it but I do not agree with its policy of overthrowing the Government.”

Mr. John C. Crary: I think he --

Justice William J. Brennan: But I agree with the social security and all the other objectives.

That's all I agree with but I am a member of the party.

Mr. John C. Crary: He might be subject to some probing of the validity of that statement but ones that stood under it --

Justice William J. Brennan: Of whichever is subject to --

Mr. John C. Crary: I think it would.

Justice William J. Brennan: (Inaudible)

Mr. John C. Crary: I think it would.

Chief Justice Earl Warren: Suppose he goes before the Civil Service Commission, what -- and has this hearing, what do you reply upon to say that the state no longer can use the presumption against him but must prove its case affirmatively.

Mr. John C. Crary: Well, here of course Your Honor, I'm --

Chief Justice Earl Warren: I beg your pardon.

Mr. John C. Crary: -- I'm bound by what the Court of Appeals said in Thompson against Wallin and what it seems to me to say and again, I point out that the Attorney General is here taking the position that he takes in support of this statute but I read Thompson against Wallin that say that the prima facie nature of the assumption imports a hearing in which proof can be brought forth and that when any proof is brought forth to overcome that presumption that disappeared.

That's what I read out -- that's what I read in Thompson against Wallin.

Of course, the Court only -- the Court knows precisely what it meant but that's the way I read it.

Justice Hugo L. Black: Is that the position the Attorney General takes?

Mr. John C. Crary: With that I prefer to let the Attorney General speak for it.

Justice Hugo L. Black: I understood your argument.

Chief Justice Earl Warren: When you finish I would like to ask Ms. Iles if that is the position of the Attorney General.

Though, I do not want to hurry.

Mr. John C. Crary: I would submit that the judgment should be affirmed, Your Honor.

Chief Justice Earl Warren: Very well.

Rebuttal of Ruth V. Iles

Ms Ruth V. Iles: I think the position of the Attorney General is that once the person being hired comes in and testifies that he doesn't subscribe to those parts of the philosophy of the Communist Party which advocate the overthrow of the government by force but just subscribes to it as a doctrine.

This -- immediately, the presumption would then vanish and then the burden would be upon the person disqualifying them to show that he advocates and willfully advocates the overthrow of the Government by force.

Now when the burden is shifted back to the person hiring him and who has disqualified him, they would have to come in with concrete proof either by statements he had made somewhere or by acts or some other kind of concrete proof which would establish a case against him on disqualification.

This would be the Attorney General's --

Justice Byron R. White: Do you -- do you think they agree with him?

Ms Ruth V. Iles: Right.

Then the burden would shift in the Attorney General or in the disqualifying officer would have the burden of coming in and showing some overt proof that this man is lying when he says he doesn't subscribe to this.

Chief Justice Earl Warren: Now, I would like to ask -- thank you Ms. Iles.

I would like to ask Mr. Lipsitz very briefly to respond to that as to whether that is the law and whether it can be sustained,just very brief.

Rebuttal of Richard Lipsitz

Mr. Richard Lipsitz: My answer is very clear, Your Honor.

It is not the law and we rely upon Lederman versus the Board of Education, one of the three cases constituting the Adler case where it barely clearly says that all he can do is (a) deny membership or (b) that the organization advocates the overthrow that is to challenge the finding of the Board of Regents or that he -- or (c) that he has knowledge of advocacy.

It's all he can do to overcome the presumption.

Justice William J. Brennan: Is that the same case --

Mr. Richard Lipsitz: Yes.

Justice William J. Brennan: With the other side of law?

Mr. Richard Lipsitz: I don't know upon what they rely, Mr. Justice Brennan.

Justice William J. Brennan: You get t hide.

Mr. Richard Lipsitz: That's yes.

It's Lederman versus Board of Education.

Justice William J. Brennan: Now, if that suppose to --

Mr. Richard Lipsitz: It's one of the three that's there involved in the Adler case.

Justice William J. Brennan: Is this another case that we have to decide on?

Mr. Richard Lipsitz: No, sir.

Justice William J. Brennan: You have a quite few (Inaudible).

Mr. Richard Lipsitz: I don't think you have to decide what it meant, Your Honors, because it says so in black and white in their decision and it's also stated at Thompson against Wallin.

It's not as they simply put it that once somebody comes in and says I didn't believe an advocacy that the presumption disappears.

That's just doesn't the way it works.

Literally speaking and I quoted from Lederman against Board of Education.

Chief Justice Earl Warren: Leatherman?

Mr. Richard Lipsitz: Lederman, L-E-D-E-R-M-A-N v. Board of Education, Your Honor.

It's cited to 75 of my brief.

It's one of the three Adler cases.

The Court says quote referring to this procedure.

“He may (a) deny membership; (b) that the organization advocates the overthrow of the government by force; and (c) that he has knowledge of such advocacy.”

This not this business about coming in and saying but I don't believe in the doctrine of advocacy or I don't believe in the doctrine or advocate the doctrine and therefore the presumption disappears.

He's got -- he's very limited in what he can do under the New York Court of Appeals interpretation of this Section.

Justice Potter Stewart: The Lederman case was one of those cases which was affirmed in Adler.

Mr. Richard Lipsitz: Yes, sir.

Justice Potter Stewart: And the case of Thompson --

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: I beg your pardon.

Mr. Richard Lipsitz: Thompson against Wallin also.

Justice Potter Stewart: So they were contemporary.

Mr. Richard Lipsitz: They were the two -- the three of them constituted to name otherwise the Adler case.

Justice Potter Stewart: The Adler case.

Well now the case on which your adversaries rely and telling us what the New York law is, that's Thompson against Wallin?

Mr. Richard Lipsitz: And Lederman.

The same case.

Justice Potter Stewart: I know that she mentioned as I understood it not --

Mr. Richard Lipsitz: Yes, she mentioned Thompson against Wallin but they also will tell you that they rely upon Lederman because Lederman is one of the three cases in which the Court of Appeals have stated in the --

Justice Potter Stewart: I want to know what -- how they were decided chronologically.

Mr. Richard Lipsitz: Oh, they are decided the same day and in fact you can find them in the New York reports one page after another.

Justice Potter Stewart: The same day.

Mr. Richard Lipsitz: Yes, sir.

There's no -- and there is no inconsistency between them by the way.

Chief Justice Earl Warren: We'll adjourn now.