AMBACH v. NORWICK

Print this transcript Transcript: 

Argument of Judith A. Gordon

Chief Justice Warren E. Burger: The case is submitted.

We'll hear arguments next in Ambach against Norwick.

Mrs. Gordon, you may proceed whenever you're ready.

Mr. Gordon: Mr. Chief Justice and may it please the Court.

The principal question presented on this appeal is whether the Equal Protection Clause requires New York to stop qualifying permanent public school teachers in terms of citizenship or application for citizenship.

This New York requirement is statutory.

It is codified in Education Law Section 3001 (3).

It operates only with respect to elementary and public school teachers and it asked for applications for citizenship only from immigrant aliens who have the legal capacity to accept or reject the request.

Other provisions of what appellants believed is a Finally Home State Program permit aliens to receive temporary certificates in certain circumstances.

For example, if an alien is going to federal disabilities and for that reason cannot acquire citizenship, he can receive a temporary certificate during the duration of those disabilities up for up to five years.

If, as another example, an alien is an exchange teacher teaching in New York public schools as an example of his own national culture, he also obtains a temporary certificate for up to two years.

The undisputed facts of this case placed the appellees at the core of the statutory requirement for citizenship or application for citizenship.

Mrs. Norwick has been a permanent resident alien in the United States for 14 years.

Mrs. Dachinger has been a permanent resident alien in the United States for 13 years.

During the entirety of that period and by force of their legal status, they had the capacity to acquire citizenship.

Both of these individuals, both appellees and there is no class action order in this case.

Both appellees sought under state law what are called N through 9 Certificates, the certificates that -- pardon me, N through 6 Certificates.

The certificates that permitted teacher to teach every, each and every grade from nursery through sixth grade and in the circumstances where the classroom teacher is responsible for teaching all of the subject matter within those grades.

This law --

Unknown Speaker: Do the -- does the state concede that these people except for alienage are further qualified?

Mr. Gordon: Yes, Your Honor with the caveat in the record which I should perhaps call to your attention and that is, in addition to the appropriate citizenship requirements, there are other grounds for obtaining provisional as distinguished from permanent certificates.

Mrs. Norwick at the outset of the case was denied, not the outset of this case, pardon me.

The outset of her application to the state authorities was denied even a temporary certificate -- pardon me, a permanent certificate because she had not completed the educational requirements for that certificate namely a Master's Degree, that aspect of the case was cured during its pendency below because she did in fact at the Master's Certificate.

So she would be qualified under state law except for the failure to comply with Education Law 3001 (3).

Unknown Speaker: One other question and I'll let you go.In the appendix on page 25, is the statement under Rule 9 (g).

Mr. Gordon: That is correct.

Unknown Speaker: Do the appellants accept that as true and correct?

Mr. Gordon: Yes, Your Honor.

If we have accepted that this is true but if the implication of your question is that in accepting that statement, the offer of proof which is set forth at page 303 of the appendix following was inappropriate then we would dispute that.

Appellants contend that Section 3001 (3) must be sustained under the Equal Protection Clause regardless of whether the statute is subjected to relax or to strict scrutiny.

The statute serves the state's substantial purpose in training citizens for -- pardon me, in training pupils for their responsibilities as citizens.

It does so by the most effective and least drastic means available.

It includes those who are willing to accept the responsibilities they must impart, namely, individual participation and democratic decision-making and it excludes only those individuals who have refused to participate and who have by that very choice placed themselves at odds with the instructional purpose that the statute carries out.

Appellees do not refute the proposition that public education in fact trains pupils for citizenship.

They also do not refute the additional proposition that public education through this training has been a force for social cohesion in the United States, forging as it were, one nation out of the various immigrants who settled this country and who continued to come here today.

Indeed, we do not think that appellees could successfully refute that proposition and faces this Court's off repeated statements that the principal purpose if not the overriding purpose of public education is in fact training for citizenship.

Given this --

Unknown Speaker: They are authorized to serve on the school boards at higher teaching?

Mr. Gordon: Yes, Your Honor.

Well, not exactly Your Honor.

Appellees point out as an example of inconsistency with the statutory program here involved that in New York City, and in New York City only, aliens have been entitled to vote in so-called community school board elections and to seat as members of those community school boards.

There are essentially 32 of those school boards.

This entire program was first enacted in 1969 and is an educational experiment which is as we showed in appendix, in exhibit A of our reply brief; again, before the legislature in terms of consideration of the validity or success of the experiment.

Now, in voting in that kind of an election and on seating on a school board, the alien who votes or seats does nothing inconsistent with this statutory program because 3001 is the overriding or supervening state statute which classifies all elementary and public school teachers in New York State and with respect to which that alien member of the school board can do nothing.

He does not have the discretion to change or affect the role model example of the teacher in the classroom as member of that board.

Unknown Speaker: Another question.

Has New York ever attempted to impose his requirement on teachers in private schools?

Mr. Gordon: No, Your Honor.

Unknown Speaker: Is there any reason for that?

Mr. Gordon: I think so Your Honor.

I think in fact the choices constitutionally compelled.

The fact that New York views as this Court has viewed, public education as the agency or primary agency through which citizenship is developed does not mean by any stretch of the imagination that private schools do or should serve the same interest.

In fact, private schools are acknowledged to be in having opinions of this Court been acknowledged to serve quite different interest largely religious interests and they operate in the context where those interests are become paramount to other interests it serves.

Indeed, for example in New York City, we have private schools that operate along the lines of national interest.

The le ce francais, which teaches a curriculum entirely in French leading through a French Baccalaureate degree in preparation for European or accept a further education European universities or pass in American universities.

Unknown Speaker: What about other Hunter, Dalton, and places like that?

Mr. Gordon: I beg your pardon, Your Honor?

Unknown Speaker: What about Dalton and Hunter?

Mr. Gordon: Well Hunter is a public --

Unknown Speaker: (Voice Overlap) private schools not denomination of school, and there are quite a few in New York.

Mr. Gordon: Well I think that's to put aside the example of Hunter Your Honor because that's a public school.

But in terms of Dalton or Brearley or the other private schools in New York, New York has left the state that is.

Has left to the parental --

Unknown Speaker: No, I mean you can't say church school --

Mr. Gordon: Well, in fact Your Honor 588,000 children or so in New York State attend private schools.

Only 64,000 of those children attend schools of the type that -- the Dalton type, all the rest attend religiously identified schools were indeed the teachers may be members of religious, international religious --

Unknown Speaker: All I'm asking is to include it in --

Mr. Gordon: Yes, that's true Your Honor.

We do not limit the qualifications of private school teachers whether for religious schools or for other private school for other types of private schools to citizens or applicants for citizenship.

Unknown Speaker: But Mrs. Gordon is it not true that the private schools both religious and secular have as part of their mission training of the pupils for citizenship and in fact doesn't the state require certain course content in order to fulfill that objective?

Mr. Gordon: I think the response must be frank in the following way, Your Honor.

It is public education that has been accorded, the principal responsibility of training for citizenship.

Public education in New York is a matter of state constitutional prerogative and protection.

Private school is not.

But of course, the state has an interest in the kind of curriculum and the kind of instructions in that -- in those private schools.

And the state does by statute which we cite in our opening brief require that the instruction in those schools be substantially equivalent.

I call to your attention, it does not require it to be the same and there is no suggestion in the statutory plan that the quality of instruction for the purpose of training for citizenship is the same.

The curriculum requirements, the basic curriculum requirements, the 12 common branches in elementary school and some additional courses and secondary school are generally required under the substantial equivalent formula in both public and private schools.

Courses in history are included in both public and private schools.

However, in terms of curriculum the state does speak differently to its own public schools.

For example, it requires in public schools but not private schools --

Unknown Speaker: But even though they are different -- even though they are differences, is not the reason for the regulation of the private schools, the states interest and being sure that all children are properly trained for citizenship.

Isn't that the overriding objective in the recent -- for the regulation?

Mr. Gordon: Frankly, Your Honor, no I don't think so.

I think that the states predominant interest for public education is in fact training for citizenship.

I think as decisions --

Unknown Speaker: But why did they regulate private schools at all then?

Mr. Gordon: Because there is a fundamental interest in no -- for the state in seeing that certain standards of educational standards are met.

The children who go through a course should be able to read and write.

But that doesn't say that the agency that has looked to for this purpose is predominantly the private school.

It is in fact the public school and has the most significantly to the extent that the religious preferences of parents might be impeded by the same identical regulation of private schools then of course that would seem to me that the state has acknowledged that and has said that, “No, we will stop shoot of that.

We will let the parent who chooses a different kind of education for his child have the full benefit of the instruction that goes along with it and the states says that that is fine.

Only minimum curriculum standard should be met.”

Chief Justice Warren E. Burger: Mrs. Gordon, why do you think you need to assert the idea that private schools do not have as part of their mission the training for citizenship.

You don't have to defend the statute of New York on the ground that it's perfect or that it's perfectly consistent.

People would have the private school who wants private schools just as we have religious schools.

But as Justice Stevens suggested there are certain minimum requirements that are common to all of those?

Mr. Gordon: That is correct, Your Honor.

Chief Justice Warren E. Burger: There are no constitutional requirements that state statutes have to be internally consistent, is there?

Mr. Gordon: Well, Your Honor that brings us to the question in this case as to whether or not we would apply the rational basis test as sustain the statute that way under the Fourteenth Amendment or whether or not we would apply strict scrutiny.

The force of my argument here today is largely directed to strict scrutiny because of course if the statute survives that test, it must perforce survive the rational basis test and accordingly, I directed my answers in that vein.

But equally Your Honor, we have taken the position in our briefs which is by no means is true and that is that the appropriate test is one of reasonable relation and that is because training for citizenship as it has been an expressed as the responsibility of the public schools is an important governmental interest, a proposition which appellees don't dispute or refute, at least successfully as I read their papers.

And indeed the relationship between the teacher as the individual who is present in the classroom who is the model and example for the behavior or his students ties him closely and reasonably with the execution of that governmental purpose.

And on those two statements we think, Your Honor, frankly that the statute not only survives reasonable basis examination but also strict scrutiny examination.

Given the posture of the case, as we perceived it framed by the arguments offered by appellees that is that they do effectively concede Your Honor.

That training for citizenship is the primary mission of the public schools.

The question then becomes whether or not or the sole question that remains in the case is whether or not the selection of the positive rather than the negative example as that Section 3001 (3) provides is in fact reasonably or necessary related to the instructional purpose that the statute serves.

And I think it is important in this context to examine for a moment what the teaching and learning process is about.

Teachers do not merely teach by recitation from a text if they ever did so and students do not learn or wrote studies which again appellees do not seriously imposed speak to the point that teachers transmit attitudes and values as well as information by their own example.

That pupils under their control in jurisdiction copy and emulate those attitudes and those the very attitude that is transmitted to --

Unknown Speaker: What are some of the attitudes and values that the citizen has that the plaintiffs in this case do not have?

Mr. Gordon: The citizen has the capacity to participate in democratic decision-making.

That is the attitude and value that is sought to be transmitted.

Unknown Speaker: You mean he can vote?

He can vote?

Mr. Gordon: He can vote.

Unknown Speaker: Well, can't these people participate and debate I suppose which is part of democratic decision-making --

Mr. Gordon: I think that --

Unknown Speaker: The answer is to let aliens vote?

Mr. Gordon: Well, I don't think based on Skafte versus Rorex that that would be likely Your Honor.

Unknown Speaker: The state could do it.

Some states have.

Mr. Gordon: Some states have historically but not for a very long time in my understanding.

Unknown Speaker: Do you have any requirement in New York that your teachers must vote in order to hold their job?

Mr. Gordon: It's interesting forth, Your Honor.

I think if we had such a requirement, it would probably be in violation of the First Amendment because after all I think the concepts embodied there include the right to remain silent as well as the right to express oneself.

Justice William H. Rehnquist: If a teacher fulfills your requirement, the teacher could also be a policeman, isn't he?

Mr. Gordon: That's right and one of -- and the regard for the assumption of those kinds of public duties is the kind of attitude and value that is sought to be imparted and when we suggest that the value is democratic decision-making and also regard for public duty, we do not exclude bringing up children to assume the responsibilities of policeman, legislators and judges.

That is exactly what the force of public education is.

I think as I've in attempting to point out that it must be accepted and it has been accepted in prior decisions of this Court particularly Wisconsin versus Yoder most recently.

That in fact, teachers do import principles by their own example by these instructions from their example of values and attitudes.

I don't think that we can find that appellees even if they acted in the utmost good faith could be the kind of example that is consistent with the statute because essentially even if they said that they would select out those attitudes that they fought would be positive reinforcements of the citizenship training they are attempting to provide they could not effectively do so because no individual can consciously select those attitudes and values which they will convey.

Teachers convey the body of their attitudes all of the time and all of the courses that they teach.

Thank you, I will reserve a few minutes for rebuttal.

Argument of Bruce J. Ennis, Jr.

Chief Justice Warren E. Burger: Very well.

Mr. Ennis.

Mr. Bruce J. Ennis, Jr.: Mr. Chief Justice and may it please the Court.

Appellants' arguments here and in their briefs largely ignore the particular facts of this case, New York's unusual and even unique statutory scheme and the narrow and rather traditional legal theory that was the basis for the unanimous judgment below.

Many of the issues raised by appellants need not be resolved in order to affirm the judgment below.

For example, this Court could assume as did the Court below that New York might have a legitimate interest in preventing some aliens from teaching some subjects at some grade levels and nevertheless conclude as did the court below that this particular statute is not necessary to protect that interest and in impermissibly under and over inclusive.

The statute is under inclusive because it does not require citizenship or even declarant status for teachers in private schools who teach 18% of the elementary and secondary school population in New York State.

Under New York law, private school teachers are --

Chief Justice Warren E. Burger: Well isn't there a difference, we do not permit, the Constitution does not permit teaching religious subjects in the public schools but it fully protects the right to teach religious subjects in private school?

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

The question here is --

Chief Justice Warren E. Burger: It seems to me it somewhat dissolves the point your making.

Mr. Bruce J. Ennis, Jr.: Well, I think not Your Honor for the following reason.

The question is not whether New York would be constitutionally required to require teachers and private schools to teach the principles of democracy or would be constitutionally preventive from doing so.

That is not at issue in this case.

The New York State legislature has chosen to require teachers in private schools to teach the principles of democracy which shows that the state has an interest whether it's a constitutional interest or not, is not an issue in this case but it shows that if the state has an interest in requiring private school teachers to teach the principles of democracy.

But if it is not necessary to ensure that private school students learn the principles of democracy to require that --

Chief Justice Warren E. Burger: Parents have a choice about sending their children.

Like the private schools, they have no choice about sending children to the public school with them under compulsory attendance laws.

Mr. Bruce J. Ennis, Jr.: Well, that's entirely correct Your Honor, but it is also true in New York that parents have no choice at the present time whether their private school students are taught the principles of democracy or not.

It is required by New York statute that private school students are taught those principles.

Our point here is simply that if citizenship or declarant status is not necessary to ensure that private school students learn those principles.

It is not necessary to ensure that public school students learn those principles.

Justice William H. Rehnquist: But isn't it possible that New York may have felt it was confirmed with conflicting claims with respect to private schools.

That is there are the desire for autonomy and let them run themselves but at the same time they have to fulfill some of the functions of public schools and so they chose to go just halfway with private schools prescribed the curriculum but not right heard on whom I teach?

Mr. Bruce J. Ennis, Jr.: Again, Your Honor, we're not saying in this case that New York is required by the Constitution to have exactly identical requirements for public school and private school teachers.

The point I'm simply making is that the New York State legislature has already by statute required that the principles of the democracy be taught by private school teachers.

The New York State legislature would clearly have the constitutional authority in my opinion if it shows to do so to require that private schools teachers meet the same minimum qualifications as do public school teachers and that would include the same citizenship or declarant statute requirements.

Justice William H. Rehnquist: Well, the point I was trying to make to you in my question was that New York could with equal constitutional validity decide to stop short with private schools of its going as far as there were public schools in saying that with public schools we are required both teaching democratic citizenship and citizen or declarant aliens status for teachers.

But with private schools, it will simply require the curriculum content and let the private schools choose the teachers themselves.

Mr. Bruce J. Ennis, Jr.: Your Honor, the point I'm trying to make is not that there is a separate and independent equal protection violation because of the different citizenship requirements for private school teachers and for public school teacher.

The point I'm simply making is that the state has already indicated it has an interest, a state interest in making sure that private school students learn the principles of democracy.

And the state apparently believes that it can fulfill that interest at least in the private schools without also requiring citizenship or declarant status for the private school teachers.

Justice William H. Rehnquist: But isn't that an equally rational inference that the state perhaps felt that private schools would not be quite a sure of fulfilling that interest but nonetheless in the interest of preserving autonomy of the private schools shows not to force them the way they chose to force the public schools?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor that's entirely a matter of speculation.

Justice William H. Rehnquist: Yes.

Mr. Bruce J. Ennis, Jr.: There's nothing in the record of this case or in the legislative history of either of those statutes that could properly answer your question on that point.

Justice William H. Rehnquist: I agree it's speculative.

Mr. Bruce J. Ennis, Jr.: I think that entirely apart from the private school point, this statue is also under inclusive because under a regulation issued by appellants, aliens who are barred by a federal statute from becoming citizens or even from filing declarations of intent to become citizens are nevertheless permitted in some circumstances to teach even in the public schools.

I think the statute is over inclusive because it applies to any alien from any country and prevents that alien from teaching any subject at any grade level.

It therefore applies to aliens such as appellees who are willing to take an oath to support the state and federal constitutions and who have actually taught the principles of democracy in New York's private schools.

It applies to aliens such as appellees who are married to United States citizens, who are the parents of United States citizens, who have resided here for well over a decade, and who even received their Graduate Education in New York Public Universities.

The statute applies to aliens from countries whose political traditions and values are indistinguishable if not much the same as our own for example, appellee Norwick was born in Scotland and is a citizen of Great Britain.

Even if we assume that the state does have an interest in preventing for example Russian citizens from teaching Civics.

Must it prevent French citizens from teaching French, or Canadian citizens from teaching Math or Metal Work in order to protect that interest?

Finally, despite appellants' erroneous claim that it was only dicta, a reading of Kay versus The Board of Education shows that the New York courts have squarely held that the citizenship requirement "is not limited to elementary and secondary schools and the court therefore holds that Bertrand Russell is not qualified to teach in City College by reason of the provisions of this Section."

Your Honor, one of the important -- Your Honors, one of the important questions in this case is the appropriate standard of review.

Now we believe that even under a rational basis standard, this statute is not necessary and would not survive.

For example, it cannot rationally be supposed that an alien who on the first day of residence in this country files a declaration of intention and is thereupon permitted to teach in New York Public Schools for five years will know more about this country's values and morals share those values and morals and be better able to teach them.

Chief Justice Warren E. Burger: Well you have read the argument for a perfectly tailored statute now, aren't you?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

Chief Justice Warren E. Burger: It's always easy to take any statute in any area under the scrutiny of litigated case, think about ways that it could be made more merely ideal.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor, we're not arguing for a perfect match here but I do believe that based on the factors identified in our brief that this particular statute is substantially and impermissibly under and over inclusive not just that there is a small difference but that there is a great difference, a difference of constitutional significance.

Unknown Speaker: You've use the word necessary to attain the state objective.

Do you really mean that?

That's the terminology of strict scrutiny.

Mr. Bruce J. Ennis, Jr.: Well, certainly that's the terminology of strict scrutiny.

Unknown Speaker: I thought you're arguing rational basis?

Mr. Bruce J. Ennis, Jr.: I'm arguing both Your Honor but let me turn to that point and say to the Court what I believe strict scrutiny is in fact the appropriate standard to be applied in this case.

Unknown Speaker: Well, I thought you just said even under the rational basis, you would think the statute is invalid.

Mr. Bruce J. Ennis, Jr.: I did say that Your Honor.

Unknown Speaker: But in that context, you use the word necessary without a slip of the tongue.

Mr. Bruce J. Ennis, Jr.: Well, actually not Your Honor.

Because the previous alien cases of this Court including for example Foley which was decided on a rational basis ground state in a footnote in Foley in the majority opinion that even if the state is legislating to define its political community, the statute cannot sweep indiscriminately that it must make careful choices.

And whether we choose the word necessary choices or over or under inclusive I think is not a particular appropriate.

When we're talking about aliens who have historically been a suspect class deprived of the right to vote politically powerless, I think that kind of scrutiny by this Court is warranted.

But let me turn to the point of why I think it's clear that strict scrutiny is in fact required in this case.

Very recently in Nyquist versus Mauclet, this Court ruled that statutes which limit the benefits to citizens or to declarant aliens must be strictly scrutinized.

Now that was a 5 to 4 decision but it has not been overruled --

Chief Justice Warren E. Burger: It is also higher education, was it not?

Mr. Bruce J. Ennis, Jr.: It was financial assistance for higher education, Your Honor.

Chief Justice Warren E. Burger: Graduate indeed, Graduate Education.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor and as I believe you pointed out in your opinion in that case, well that was a lesser interest of the plaintiffs involved than it would be the interest in this case which is a right to employment which you described in that case as a fundamental personal interest.

The interest in Foley was simply an additional benefit, financial assistance for graduate education whereas the interest in this case is actually the right to appointment.

Chief Justice Warren E. Burger: We haven't reverse I think in Mauclet and Foley.

Mr. Bruce J. Ennis, Jr.: I'm sorry, I was -- I'm sorry, I was talking about Mauclet, Your Honor.

At any rate, I think that Mauclet is indistinguishable on that point and therefore, unless this case falls within the political community exception for suggested in Sugarman and first applied in Foley, the strict scrutiny standard should apply.

I think that there are at least six reasons which distinguish this case from Foley but before discussing those specific reasons, I would like to make one point not made in our brief which I personally find dispositive.

We contend as the New York courts actually held in (Inaudible) that teachers have only very limited discretionary authority under subject to close supervision.

But whatever authority teachers have to formulate or execute broad policy, they certainly do not possess as much authority to formulate or execute policy and do not have as much continuing or overall impact on the political socialization of students as do their direct superiors the local community school boards who under New York statute have the authority to hire and fire and select teachers to specify the curriculum, to select textbooks and other instructional materials, and "to generally manage and operate the schools."

As appellant conceived the New York legislature has authorized non-declarant aliens to vote for and serve as members of those school boards.

And it seems to me that in New York at least, it is frivolous to argue that teachers exercise such broad policy making authority that they come within the political community exception --

Unknown Speaker: Mr. Ennis --

Mr. Bruce J. Ennis, Jr.: -- when the direct superiors do not.

Justice Lewis F. Powell: I interrupt you because what you said startles me when you suggest that a school board member who never goes into a classroom has as much authority with what a pupil is taught to think and what the value is that people may be as result to being taught by classroom teachers, is that your position?

Mr. Bruce J. Ennis, Jr.: Well Mr. Justice Powell, let me answer that question this way.

The studies that are cited in both of our briefs make it clear that social scientist do not yet know whether the role model of the teacher or the curriculum is the more important factor in political socialization.

But certainly the curriculum is --

Justice Thurgood Marshall: How many people is in New York City you think know a single member off the school board?

Mr. Bruce J. Ennis, Jr.: Your Honor, I don't think many students --

Justice Thurgood Marshall: Would you rather say, you don't think any except the sons and daughters of the members of the board?

Mr. Bruce J. Ennis, Jr.: Perhaps not any, Your Honor.

But let me say this --

Justice Thurgood Marshall: And what does that do to you?

Mr. Bruce J. Ennis, Jr.: I think it leaves it unimpaired for the following reason.

The school boards can actually select the teachers which are going to be the role models.

That's the first point.

Second, the school boards have an effect on the political socialization of children by deciding what they are going to read and the instruction materials they are going to use not only for one course or perhaps for one year as the teacher might but throughout their entire school career.

Chief Justice Warren E. Burger: Can you take away the discretion which all of New York has given to school boards and not to engage aliens?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

Chief Justice Warren E. Burger: Including citizens of the U.S.S.R. for example?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

I have no intention to take away that statutory authority that New York has --

Chief Justice Warren E. Burger: Then why are you here?

If you're not trying to take away the statutory authority as the three-judge court did.

Mr. Bruce J. Ennis, Jr.: Excuse me, Your Honor.

I thought you were talking about the statutory authority which permits aliens to be members of school boards.

Chief Justice Warren E. Burger: No, I'm talking of the statutory authority who picked the school teachers through a chain of command.

They don't pick them directly.

Mr. Bruce J. Ennis, Jr.: We're not quarrelling in this case with the discretionary judgments of school boards to pick teachers on one or another ground.

We're only quarrelling with the statutory provision which says that no school board whether in New York City or outside of New York City can select a teacher for public school who is not a citizen or declarant alien.

So we're not quarrelling here with the discretion of school boards except for the statutory provision which limits their discretion.

Unknown Speaker: Mr. Ennis.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

Unknown Speaker: I understand you are arguing that school board members have as much authority and influence over the pupil as teachers do, is that your argument?

Mr. Bruce J. Ennis, Jr.: I think Your Honor that it is difficult for the state to argue that teachers are so close to the core of the political community that they must come within the political community exception.

Unknown Speaker: You don't have -- are textbooks are selected in New York?

Mr. Bruce J. Ennis, Jr.: Pardon me, Your Honor?

Justice Lewis F. Powell: Do you know the process by which textbooks are selected in New York City?

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

There are very minimum qualifications but as the state points out in their reply brief.

Basically, the curriculum is set by the community school boards themselves and the selection of textbooks.

Justice Lewis F. Powell: Actually, what happens is that committees of teachers select the books.

The school board ratifies those, all of them without ever having read any of them.

I've been there I know.

Mr. Bruce J. Ennis, Jr.: Mr. Justice Powell, I know of your experience --

Justice Thurgood Marshall: And that --

Mr. Bruce J. Ennis, Jr.: -- in the School Board of Virginia and I certainly not going to quarrel with you on how these things actually happen.

Justice Thurgood Marshall: You have to listen to the whole out of organizations objective to different book.

Mr. Bruce J. Ennis, Jr.: I guess that's correct too.

Let me say this that even if that point is not dispositive, I think there are at least six grounds why this case is readily distinguishable from Foley.

First the majority of Foley expressly reaffirmed at two points in the opinion, earlier cases requiring close scrutiny when aliens are excluded as in this case from "license to professions.”

Second, "the majority also stressed that the office of the policeman is in no sense one of the common occupations of the community.”

But teaching is the third most common occupation in New York State even more common done laborers and is apparently the largest category of public.

Chief Justice Warren E. Burger: Do you think commons has been used in these decisions in terms of the court, in terms of the head count?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor the Court has never elaborated on exactly what it does mean by common occupations but that is certainly an important point.

At least four cases decided by this Court in the last five years have quoted that provision of Truax versus Raich which talk about common occupations and that was relied upon for example in Griffiths involving lawyers and the Court apparently thought that lawyers were a common occupation even though they are not as numerous as teachers.

Third, appellants do not dispute the New York Case Law and the opinions of the New York Attorney General which expressly hold that teaching is not a public office and that teachers are employees not officers and do not "exercise any sovereign power.”

In that connection, I think it's worth noting that the states brief in Foley stressed that state police were designated public officers not employees.

Fourth, the majority in Foley also stressed that "most states expressly confine the employment of police officers to citizens.”

But even a generous reading of exhibit C to the states reply brief shows that over three-fourths of the states do not require citizenship or even declarant status to teach in public schools in those states.

Fifth, alien --

Justice John Paul Stevens: In your point Mr. Ennis, doesn't your opponent make it clear that about a large number don't do so because they fear there is a constitutional problem?

Mr. Bruce J. Ennis, Jr.: Well, Your Honor I'd like to --

Justice John Paul Stevens: About 50-50 on the policy choice.

Mr. Bruce J. Ennis, Jr.: I would like to say two things about that.

First, it is of course entirely speculative why 10 states in the last few years have abandoned previous requirements of citizenship or declarant status.

We don't really know why.

But to the extent the state would be right about that that Attorney's General of those states concluded after reading this Court's decisions that citizenship cannot --

Justice John Paul Stevens: Reading all of them except Foley?

Mr. Bruce J. Ennis, Jr.: Pardon me?

Justice John Paul Stevens: Reading all of them except Foley?

Mr. Bruce J. Ennis, Jr.: But certainly knowing about the political community exception discussed in Sugarman and only later applied --

Justice John Paul Stevens: Yes, but not knowing it didn't include policeman or did include policeman.

That came, I think must have come as quite a surprise about a few of those states attorney general.

Mr. Bruce J. Ennis, Jr.: Well, Your Honor, I've argued a lot of cases against attorneys general but I would like to say that I don't think they can all be wrong all of the time.

And if the unanimous opinion --

If the unanimous opinion of all these attorneys generals is that this Court's previous decisions do not bring teachers within the political community exception discussed in Sugarman.

I think that itself is entitled to some weight in deciding what the law in this country is.

Fifth, --

Unknown Speaker: That's what the dissent in Foley thought to.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

Fifth, alien attorneys do not come within the political community exception to strict scrutiny and it follows a fortiori.

Unknown Speaker: Dissenting one of the concurrence if we might add.

Mr. Bruce J. Ennis, Jr.: And it follows that teachers do not because lawyers share more or the characteristics of police fought relevant in Foley than do teachers.

As this Court noted in, In re Primus "The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice and have historically been officers of the court.”

And as this Court noted in Griffiths, like police, lawyers can invade individual privacy through issuance of subpoenas and compelled depositions indeed the Court noted that lawyers can even "command the assistance of police."

Finally, teaching is not a governmental monopoly.

All of the alien cases today in which this Court has not applied strict scrutiny or has ruled that citizenship is a permissible requirement involved governmental monopolies.

You cannot have private voting for state or federal officials or private jury trials, or private state police but you can't have --

Justice John Paul Stevens: But isn't teaching a public school a governmental monopoly?

Mr. Bruce J. Ennis, Jr.: Teaching per se Your Honor is not.

Justice John Paul Stevens: But the rule does not apply except in public schools to the extent that the rule applies it applies in the governmental monopoly.

Mr. Bruce J. Ennis, Jr.: I'm simply trying to suggest a distinction between all of the previous cases and this one which is based on the function of the job regardless of whether the state --

Justice William H. Rehnquist: How about private security police?

I mean, obviously, they're not state official but nonetheless they prefer the same functions as police, isn't that kind of analogous what Justice Stevens is talking about?

It is somewhat analogous, Your Honor.

Mr. Bruce J. Ennis, Jr.: You can define the question so that it comes out in your favor, but I do not know that it will help.

Justice William H. Rehnquist: Well, let me say this Your Honor

Mr. Bruce J. Ennis, Jr.: I don't know exactly where the political community exception established by this Court is going to lead in the future.

All I'm suggesting is that to date it is only been applied by this Court to cases involving pure governmental monopolies and I think that's an appropriate place to draw the line and not to extend it further than that.

Chief Justice Warren E. Burger: Do you think first statute does just that as Mr. Justice Stevens suggest it applies only to the governmental monopoly or the public schools of the limited category, public primary and not higher education?

Mr. Bruce J. Ennis, Jr.: Your Honor, the point I'm trying to make is that the Court should focused on the actual function involved.

Of course, we could have private security police but the function of teaching is not a governmental monopoly.

In fact this Court ruled in the Rodriguez case that teaching is not only not a governmental monopoly but is not even a fundamental right.

There is no constitutional right given to a public education.

Chief Justice Warren E. Burger: That doesn't change order the fact that it's a governmental monopoly to teach public schools, does it?

The fact that there's no enforceable right to have a public school if that's the case.

Mr. Bruce J. Ennis, Jr.: Your Honor, I think the critical point here is not whether the state has chosen to make its regulations applicable to both public and private schools.

It could make the application applicable to private schools.

The point is that the function of teaching has never been thought in this country to be a function that can be reserved only to the public sector and can be performed only by the private sector.

Previous decisions of this Court, Pierce versus Society of Sisters and others recognized that there is a private right to teach and to learn and that it is not a governmental monopoly.

Justice John Paul Stevens: Mr. Ennis, do you happen to know what percentage of the New York State budget is devoted to public education?

Mr. Bruce J. Ennis, Jr.: I do not know that Your Honor.

All I know on that point is that 18% of the students and elementary secondary schools are in private schools.

I do not know that --

Justice John Paul Stevens: In most states, education is a single largest item in the state budget that may not be true in New York in the view of the welfare law with.

Mr. Bruce J. Ennis, Jr.: I don't know the answer to that question Your Honor but I think it does raise a point that I begin with and that is New York statutory schemes are rather unique scheme including the statute which permits aliens to serve on school boards and I think the decision of this Court need not be any broader than the New York statutory scheme and would not have to apply necessarily to the teaching profession in other states.

I would like simply to make one other point.Appellants have stated under oath that they are -- appellees have stated under oath that they are willing to take an oath to support the state and federal constitutions.

Now if what we're concerned about is not functional reality about actual ties to this country based on period of residence, paying taxes marriage to U.S. citizens.

If what we're concerned about is a piece of paper, it seems to me that that oath is a more specific and also represents a more present commitment --

Justice Thurgood Marshall: Did he explain any place where they will not take an oath and support the guys to the United States but they don't want citizenship?

Mr. Bruce J. Ennis, Jr.: Your Honor, under New York statutory --

Justice Thurgood Marshall: Is there anything in the record --

Mr. Bruce J. Ennis, Jr.: There is nothing in the record.

Under the New York statutory scheme the reasons why a particular permanent resident alien decides not at a point in time to apply for citizenship are entirely immaterial and irrelevant.

Justice Thurgood Marshall: How does it measure what good don't this?

Mr. Bruce J. Ennis, Jr.: Well, let me say this Your Honor, the declaration of intention is merely a declaration that at some point in the future, the declarant intends to become a citizen.

The actual decoration intention says nothing in it at all not whether at the present time the declarant agrees with either state or federal constitutional principles.

Justice Thurgood Marshall: They don't need a (Inaudible)?

People don't want to sign that.

Mr. Bruce J. Ennis, Jr.: Decide which Your Honor?

Justice Thurgood Marshall: Why is it they don't sign that?

Mr. Bruce J. Ennis, Jr.: Your Honor, as I said there is nothing of that kind.

Justice Thurgood Marshall: Not that anything has to do with the case except if they did sign it, there would never be a lawsuit?

Mr. Bruce J. Ennis, Jr.: Well, I can say this in response to your question.

I am authorize to represent to the Court as we --

Justice Thurgood Marshall: I do not want anything outside the record.

I ask was there a presenting in the record?

Mr. Bruce J. Ennis, Jr.: Nothing in the record but there is in our brief a representation to the Court that both appellees would immediately petition for citizenship and become United States citizens if they did not have to renounce the land of their birth in order to do that.

Now the particular reasons why they do not want to make that enunciation are not in the record.

I could suggest some for this Court.

Justice Thurgood Marshall: I didn't' ask for it but if you want you just go ahead.

Mr. Bruce J. Ennis, Jr.: Well, Your Honor, they may for example wish to preserve the rather considerable benefits of dual citizenship for their children.

Justice Thurgood Marshall: Anyone of old time people like to stay on the record.

Mr. Bruce J. Ennis, Jr.: Well then I will not pursue that point further Your Honor.

Justice Potter Stewart: One of these named plaintiffs is Scotch and the other is what?

Mr. Bruce J. Ennis, Jr.: From Finland Your Honor.

Chief Justice Warren E. Burger: But I suppose in deciding the case we might just as well assume that were from Thailand, let's say Cambodia and U.S.S.R. --

Mr. Bruce J. Ennis, Jr.: Well Your Honor that

Chief Justice Warren E. Burger: -- or North Vietnam or Vietnam just now.

Mr. Bruce J. Ennis, Jr.: That does raise the due process argument in our brief which we I do not want to get into in detail but this Court has suggested in all of its previous alien cases that it has expressly left open a question of whether or not alienage might be a permissible consideration for state in the course of making an individualize determination about a job applicant's fitness rather making a wholesale band or class Y judgment and we do not think that that kind of inquiry would necessarily be precluded by previous decisions of this Court.

I will not discuss the due process arguments or academic freedom or supremacy clause arguments because I think they are covered adequately in our brief.

Thank you.

Rebuttal of Judith A. Gordon

Chief Justice Warren E. Burger: Very well, Mr. Ennis.

Do you have anything further Mrs. Gordon?

Mr. Gordon: I only have possibly one sentence further Your Honor.

And that is, that it is completely immaterial to this classifying plan where the alien comes from whether he comes from Cambodia or whether he comes from Finland or Great Britain because so long as he has the capacity to choose citizenship and refuses to do so, he manifests the negative example that the statute seeks to avoid.

As to the rest of arguments made by the appellees, we think that they are appropriately answered in our reply brief.

Thank you very much.

Justice John Paul Stevens: Mrs. Gordon, let me just ask one question if I – I don't think it's repetitious but is there a characteristic of alienage, the class that's affected by this rule that has any relevance to their teaching ability and if so, what is it?

Mr. Gordon: Is there a characteristic that affect?

There is a characteristic that affects permanent resident aliens who refused to acquire citizenship that affects their capacity to teach effectively in terms of public education because they have eschewed by that choice to wit the choice not to acquire citizenship the very example of democratic participation that they are trying to, excuse me, trying to advance through the students in terms of the balance of the statutory probe.

The statutory and regulatory program that portion which we give certificates to certain temporary aliens who are under disabilities they have a characteristic or the absence of the characteristics which allows the affair in inclusion because they do not have the capacity to choose American citizenship while the are under disabilities, they do not present the manifestly negative example that the permanent resident who do does have that legal capacity presents.

Justice John Paul Stevens: I'm sorry I really did not understand your answer.

What is -- could you just tell me in a word, what is the characteristic of the group that is relevant to their ability to teach?

Mr. Gordon: The capacity to participate in democratic decision-making.

Justice Thurgood Marshall: And then applies to everybody from a social science teacher to a printing teacher?

Mr. Gordon: It requires --

Justice Thurgood Marshall: To a printing teacher?

Or home economics teacher?

Mr. Gordon: That is correct because all teachers are examples and in that way communicate values and attitudes but perhaps more significantly Your Honor, because in New York as indeed in every other state of which I am familiar at least, the curriculum for teachers for example in nursery through sixth grade includes all subject matters.

The curriculum for teachers from seventh through twelfth grades where there is an academic departmentalization naturally has that academic subject matter.

Justice Thurgood Marshall: They didn't teach kindergarten any printing?

Mr. Gordon: No, because we don't offer printing in nursery through sixth grades.

But to the extent that you have a high school situation where there is --

Justice Thurgood Marshall: I'm talking about elementary students.

Mr. Gordon: Elementary school, no sir, we don't teach printing and all teachers and elementary school teach all subject matter.

Chief Justice Warren E. Burger: Isn't there a rather simple answer into the question --

Justice Thurgood Marshall: Well, wait a minute.

Do the teachers in the dancing school on 44th Street teach everything?

Mr. Gordon: You mean the high school performing arts?

Justice Thurgood Marshall: Yes.

Mr. Gordon: But we just merely talking about --

Justice Thurgood Marshall: Well, isn't that a public school?

Mr. Gordon: No, the example you gave me Your Honor was nursery through sixth grade and that's how we excluded the printing example.

In secondary schools where education is departmentalized, naturally the teacher teaches in his subject matter but --

Justice Thurgood Marshall: We're talking about all the schools in New York.

You've got schools up around -- what's the name?

Albany.

Mr. Gordon: Which are not departmentalized?

Justice Thurgood Marshall: They are completely departmentalized in elementary schools.

Mr. Gordon: Well, Your Honor in New York secondary schools may or may not be departmentalized.

Where they are departmentalized, naturally the teacher teaches his particular course.

However, every teacher even in secondary school, even the printing teacher can be required by state law to teach on any given day of the week, Civics, Language, Science, and so on.

Justice Thurgood Marshall: And mop the floor?

Mr. Gordon: Well, I don't think mop the floor Your Honor.

Justice Thurgood Marshall: Well, yes.

Chief Justice Warren E. Burger: There is shallow, I wonder that you can navigate in response to these some of these questions.

Mainly that as a category, as a class, teachers who are aliens teaching in primary schools and secondary schools are category of people who reject American citizenship and announced that they prefer citizenship in some other country.

Mr. Gordon: That's exactly so.

Chief Justice Warren E. Burger: That certainly relates to the role model if it doesn't affect the substance of the teaching.

Mr. Gordon: That's absolutely true, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.