Keyishian v. Board of Regents

Keyishian et al. v. Board of Regents of the University of the State of New York et al.

Appeal from the United States District Court for the Western District of New York.

No. 105. Argued November 17, 1966.—Decided January 23, 1967.

Appellants, faculty members of the State University of New York and a nonfaculty employee, brought this action for declaratory and injunctive relief, claiming that New York's teacher loyalty laws and regulations are unconstitutional. Their continued employment had been terminated or was threatened when each appellant faculty member refused to comply with a requirement of the university trustees that he certify that he was not a Communist and that if he had ever been one he had so advised the university president; and the nonfaculty employee refused to state under oath whether he had advocated or been a member of a group which advocated forceful overthrow of the government. Under § 3021 of New York's Education Law "treasonable or seditious" utterances or acts are grounds for dismissal from the public school system, as well as under § 105, subd. 3, of the Civil Service Law. Other provisions of § 105 of the Civil Service Law disqualify from the civil service or employment in the educational system any person advocating or involved with the distribution of written material which advocates the forceful overthrow of the government. Section 3021 does not define "treasonable or seditious." Section 105, subd. 3, provides that "treasonable word or act" shall mean "treason" as defined in the Penal Law and "seditious word or act" shall mean "criminal anarchy" as therein defined. Section 3022 (the Feinberg Law) of the Education Law requires the State Board of Regents to issue regulations for the disqualification or removal on loyalty grounds of faculty or other personnel in the state educational system, to make a list of "subversive" organizations, and to provide that membership therein constitutes prima facie evidence of disqualification for employment. The Board listed the National and State Communist Parties as "subversive organizations" under the law, but shortly before the trial of this case the university trustees' certificate requirement was rescinded and it was announced that no person would be ineligible for employment "solely" because he refused to sign the certificate, and that §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law constituted part of the employment contract. A three-judge District Court sustained the constitutionality of these provisions against appellants' challenges of vagueness and overbreadth and dismissed the complaint. Held:

1. Adler v. Board of Education, 342 U.S. 485, in which this Court upheld some aspects of the New York teacher loyalty plan before its extension to state institutions of higher learning, is not controlling, the vagueness issue presented here involving § 3021 and § 105 not having been decided in Adler, and the validity of the subversive organization membership provision of § 3022 having been upheld for reasons subsequently rejected by this Court. Pp. 593-595.

2. The rescission of the certificate requirement does not moot this case, as the substance of the statutory and regulatory complex challenged by appellants remains. P. 596.

3. Section 3021 of the Education Law and § 105, subds. 1 (a), 1 (b), and 3, of the Civil Service Law as implemented by the, machinery created pursuant to § 3022 of the Education Law, are unconstitutionally vague, since no teacher can know from § 3021 of the Education Law and § 105, subd. 3, of the Civil Service Law what constitutes the boundary between "seditious" and nonseditious utterances and acts, and the other provisions may well prohibit the employment of one who advocates doctrine abstractly without any attempt to incite others to action, and may be construed to cover mere expression of belief. Pp. 597-604.

     (a) These provisions, which have not been interpreted by the New York courts, can have a stifling effect on the "free play of the spirit which all teachers ought especially to cultivate and practice" (Wieman v. Updegrafj, 344 U.S. 183, 195 (concurring opinion)). Pp. 601-602.

     (b) Academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. P. 603.

     (c) The prolixity and profusion of statutes, regulations, and administrative machinery, and manifold cross-references to interrelated enactments and rules aggravate the problem of vagueness of wording. P. 604.

4. The provisions of the Civil Service Law (§ 105, subd. 1 (c)) and the Education Law (§ 3022, subd. 2), which make Communist Party membership, as such, prima facie evidence of disqualification for employment in the public school system are "overbroad" and therefore unconstitutional. Pp. 605-610.

     (a) Constitutional doctrine after this Court's upholding of § 3022, subd. 2, in Adler has rejected its major premise that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. P. 605.

     (b) Mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for imposing sanctions. Pp. 606-610.

255 F. Supp. 981, reversed and remanded. . . .

Mr. Justice Brennan delivered the opinion of the Court.

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

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

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

Appellants brought this action for declaratory and injunctive relief, alleging that the state program violated the Federal Constitution in various respects. A three-judge federal court held that the program was constitutional. 255 F. Supp. 981. We noted probable jurisdiction of appellants' appeal, 384 U.S. 998. We reverse.

I.&

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

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

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

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

II. 

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

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

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

III. 

Section 3021 requires removal for "treasonable or seditious" utterances or acts. The 1958 amendment to § 105 of the Civil Service Law, now subdivision 3 of that section, added such utterances or acts as a ground for removal under that law also. The same wording is used in both statutes—that "the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts" shall be ground for removal. But there is a vital difference between the two laws. Section 3021 does not define the terms "treasonable or seditious" as used in that section; in contrast, subdivision 3 of § 105 of the Civil Service Law provides that the terms "treasonable word or act" shall mean "treason" as defined in the Penal Law and the terms "seditious word or act" shall mean "criminal anarchy" as defined in the Penal Law.

Our experience under the Sedition Act of 179, 1 Stat. 596, taught us that dangers fatal to First Amendment freedoms inhere in the word "seditious." See New York Times Co. v. Sullivan, 376 U.S. 254, 273-276. And the word "treasonable," if left undefined, is no less dangerously uncertain. Thus, it becomes important whether, despite the omission of a similar reference to the Penal Law in 3021, the words as used in that section are to be read as meaning only what they mean in subdivision 3 of 105. Or are they to be read more broadly, and to constitute utterances or acts "seditious" and "treasonable" which would not be so regarded for the purposes of § 105? . . .

Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy? It is no answer to say that the statute would not be applied in such a case. We cannot gainsay the potential effect of this obscure wording on "those with a conscientious and scrupulous regard for such undertakings." Baggett v. Bullitt, 377 U.S. 360, 374. Even were it certain that the definition referred to in 105 was solely Penal Law § 160, the scope of § 105 still remains indefinite. The teacher cannot know the extent, if any, to which a "seditious" utterance must transcend mere statement about abstract doctrine, the extent to which it must be intended to and tend to indoctrinate or incite to action in furtherance of the defined doctrine. The crucial consideration is that no teacher can know just where the line is drawn between "seditious" and nonseditious utterances and acts.

Other provisions of § 105 also have the same defect of vagueness. Subdivision 1(a) of § 105 bars employment of any person who "by word of mouth or writing willfully and deliberately advocates, advises or teaches the doctrine" of forceful overthrow of government. This provision is plainly susceptible of sweeping and improper application. It may well prohibit the employment of one who merely advocates the doctrine in the abstract, without any attempt to indoctrinate others or incite others to action in furtherance of unlawful aims. See Herndon v. Lowry, 301 U.S. 242; Yates v. United States, 354 U.S. 298; Noto v. United States, 367 U.S. 290; Scales v. United States, 367 U.S. 203. And in prohibiting "advising" the "doctrine" of unlawful overthrow, does the statute prohibit mere "advising" of the existence of the doctrine, or advising another to support the doctrine? Since "advocacy" of the doctrine of forceful overthrow is separately prohibited, need the person "teaching" or "advising" this doctrine himself "advocate" it? Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence violate this prohibition?

Similar uncertainty arises as to the application of subdivision 1(b) of § 105. That subsection requires the disqualification of an employee involved with the distribution of written material "containing or advocating, advising or teaching the doctrine" of forceful overthrow, and who himself "advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein." Here again, mere advocacy of abstract doctrine is apparently included. And does the prohibition of distribution of matter "containing" the doctrine bar histories of the evolution of Marxist doctrine or tracing the background of the French, American, or Russian revolutions? The additional requirement, that the person participating in distribution of the material be one who "advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine" of forceful overthrow, does not alleviate the uncertainty in the scope of the section, but exacerbates it. Like the language of § 105, subd. 1(a), this language may reasonably be construed to cover mere expression of belief. For example, does the university librarian who recommends the reading of such materials thereby "advocate . . . the . . . propriety of adopting the doctrine contained therein"? . . .

There can be no doubt of the legitimacy of New York's interest in protecting its education system from subversion. But "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488. The principle is not inapplicable because the legislation is aimed at keeping subversives out of the teaching ranks. In De Jonge v. Oregon, 299 U.S. 353, 365, the Court said:

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, supra, at 487. The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U.S. 234, 250, we said:

"The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."

We emphasize once again that "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms," N.A.A.C.P. v. Button, 371 U.S. 415, 438; "[f]or standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." Id., at 432-433. . . .

The regulatory maze created by New York is wholly lacking in "terms susceptible of objective measurement." Cramp v. Board of Public Instruction, supra, at 368 U.S. 286. It has the quality of "extraordinary ambiguity" found to be fatal to the oaths considered in Cramp and Baggett v. Bullitt. "[M]en of common intelligence must necessarily guess at its meaning and differ as to its application. . . ." Baggett v. Bullitt, supra, at 367. Vagueness of wording is aggravated by prolixity and profusion of statutes, regulations, and administrative machinery, and by manifold cross-references to interrelated enactments and rules.

We therefore hold that § 3021 of the Education Law and subdivisions 1(a), 1(b) and 3 of § 105 of the Civil Service Law, as implemented by the machinery created pursuant to § 3022 of the Education Law, are unconstitutional.

IV. 

Appellants have also challenged the constitutionality of the discrete provisions of subdivision 1(c) of § 105 and subdivision 2 of the Feinberg Law, which make Communist Party membership, as such, prima facie evidence of disqualification. The provision was added to subdivision 1(c) of § 105 in 1958 after the Board of Regents, following notice and hearing, listed the Communist Party of the United States and the Communist Party of the State of New York as "subversive" organizations. Subdivision 2 of the Feinberg Law was, however, before the Court in Adler, and its constitutionality was sustained. But constitutional doctrine which has emerged since that decision has rejected its major premise. That premise was that public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. . . .

However, the Court of Appeals for the Second Circuit correctly said in an earlier stage of this case, ". . . the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 345 F.2d 236, 239. Indeed, that theory was expressly rejected in a series of decisions following Adler. . . .

These limitations clearly apply to a provision, like § 105, subd. 1(c), which blankets all state employees, regardless of the "sensitivity" of their positions. But even the Feinberg Law provision, applicable primarily to activities of teachers, who have captive audiences of young minds, are subject to these limitations in favor of freedom of expression and association; the stifling effect on the academic mind from curtailing freedom of association in such manner is manifest, and has been documented in recent studies. Elfbrandt and Aptheker state the governing standard: legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.

Measured against this standard, both Civil Service Law § 106, subd. 1(c), and Education Law § 3022, subd. 2, sweep overbroadly into association which may not be proscribed. The presumption of disqualification arising from proof of mere membership may be rebutted, but only by (a) a denial of membership, (b) a denial that the organization advocates the overthrow of government by force, or (c) a denial that the teacher has knowledge of such advocacy. Lederman v. Board of Education, 276 App. Div. 527, 96 N.Y.S. 2d 466, aff'd, 301 N.Y. 476, 95 N.E. 2d 806. Thus, proof of nonactive membership or a showing of the absence of intent to further unlawful aims will not rebut the presumption and defeat dismissal. This is emphasized in official administrative interpretations. For example, it is said in a letter addressed to prospective appointees by the President of the State University, "You will note that . . . both the Law and regulations are very specifically directed toward the elimination and nonappointment of 'Communists' from or to our teaching ranks. . . ." . . .

Thus § 105, subd. 1(c), and § 3022, subd. 2, suffer from impermissible "overbreadth." Elfbrandt v. Russell, supra, at 19; Aptheker v. Secretary of State, supra; N.A.A.C.P. v. Button, supra; Saia v. New York, 334 U.S. 558; Schneider v. State, 308 U.S. 147; Lovell v. Griffin, 303 U.S. 444; cf. Hague v. C.I.O., 307 U.S. 496, 515-516; see generally Dombrowski v. Pfister, 380 U.S. 479, 486. They seek to bar employment both for association which legitimately may be proscribed and for association which may not be proscribed consistently with First Amendment rights. Where statutes have an overbroad sweep, just as where they are vague, "the hazard of loss or substantial impairment of those precious rights may be critical," Dombrowski v. Pfister, supra, at 486, since those covered by the statute are bound to limit their behavior to that which is unquestionably safe. As we said in Shelton v. Tucker, supra, at 488, "The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose."

We therefore hold that Civil Service Law § 105, subd. 1(c), and Education Law § 3022, subd. 2, are invalid insofar as they proscribe mere knowing membership, without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York.

The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.