Baggett v. Bullitt

PETITIONER:Baggett
RESPONDENT:Bullitt
LOCATION:Georgia General Assembly

DOCKET NO.: 220
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 360 (1964)
ARGUED: Mar 24, 1964
DECIDED: Jun 01, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – March 24, 1964 in Baggett v. Bullitt

Earl Warren:

Number 220, Lawrence W. Baggett, et al., Appellants, versus Dorothy Bullitt, et al.

Arval A. Morris:

May it please the Court.

Earl Warren:

We’ll wait a moment until counsel gets —

Arval A. Morris:

Sorry.

Earl Warren:

Mr. Morris.

Arval A. Morris:

Mr. Chief Justice, Members of this Court.

This case, Baggett against Bullitt, Number 220, is a loyalty oath case involving test oaths as a condition of academic employment at a state university in United States, the University of Washington.

This case presents many issues but one of them which is of paramount significance and one to which I wish to attract my attention and one to which I shall confine the bulk of my argument is whether or not these test oaths function as a prior restraint on academic freedom , freedom of speech, freedom of association and freedom of conscience.

Specifically, does the State have constitutional power under the First and Fourteenth Amendments to require that all professors give up certain of their rights for academic freedom, free speech, association and conscience as a condition of academic employment at a state university?

The facts of the case can easily be stated.

As to the class action brought by 64 people who are intimately connected with the University of Washington, 64 of the — of the 64 appellants, 56 of them are professors and members of the academic faculty having teaching and/or research duties.

This is set forth in the record at pages 151 to 156.

Thirty-one of the professors have tenure at the University of Washington and 25 of the professors have academic appointments usually for a three-year duration.

Now, these 25 professors do not have tenure but they are not probationary employees in the usual sense of the term but instead they have a three-year appointment that is renewable for another three years at the end of which they will acquire tenure and this is set forth in the record at page 294.

Many of the professors have security clearances from such agencies of the United States Atomic Energy Commission, the United States Air Force, the Navy and the Boeing Company.

Of the eight remaining appellants who are not members of the academic faculty, four of them are students of the University of Washington, two are secretary typists, one is a micro-meteorologist and another is an assistant editor of the University of Washington Press.

Many of the professors at the University of Washington, three of whom are before this Court today, Professor Usinger, Professor Kenneth Reed and Professor Paul Didrickson are aliens.

As set forth at page 102 of appellants’ briefs, these oaths have been demanded of the aliens who were involved in this case.

Earl Warren:

What is that last sentence?

I didn’t get what you said.

Arval A. Morris:

I say as set forth at page 102 of the appellants’ brief, the aliens have been demanded that they execute the oaths involved in this case.

Earl Warren:

Yes.

Arval A. Morris:

That’s also supported by the record at pages 159, page 303 and page 176.

The context within which the professors assert their rights is, of course, the University of Washington.

It was — it was early founded in our nation in 1861.

It is now in its 2nd century of academic endeavor.

It is older than the State of Washington having been found prior to that.

At the present time on its Seattle campus, it has the faculty of over 1500 professors, a physical plan of about 100 permanent buildings located in area of about 600 acres.

Beyond its Seattle campus, it —

Byron R. White:

Is it involved in the record?

Arval A. Morris:

Yes, sir.

They’re — the educational research activities of University of Washington are fully described in the record on pages 89 to 150.

I should only point out that the size of the University, although it has a total of 32,000 students that the size alone is not a measure of its quality but rather the measure of its quality tends to be in the quality of its graduate students, the quality of its professorial staff and, of course, in the physical plant.

It is the 14th largest at the present time.

It is one of the three on the west coast that happened to be members of the American Association Universities and only 40 universities in the nation can claim this membership.

Before turning directly to the materials with respect to prior restraint, I should like to clarify two points, one, raised by the Attorney General in his reply to our brief, namely, that the definitional sections of this oath are not an issue.

I should like to direct the Court’s attention to page 160 of the record.

The Attorney General’s brief at page 26 argues that the definitional sections of the oath are not before this Court.

In fact and I quote, he says, “One search is the pleadings and pretrial order in vying for a clear request that the definitional sections be declared unconstitutional.”

Now, agreed fact 12 on page 160 states, “The other statutes material to this cause and whose constitutionality are contested here require the oath.”

These statutes are here and after referred to as requiring the 1955 oath and it was agreed that this would be a shorthand way of expressing what follows.

And our part of the Subversive Activities Act of the State of Washington being Chapter 377, Laws of 1955, Amending Chapter 254, Laws of 1951.

And then following, as reproduced there, a — the definitional sections so that it appears very clearly at agreed fact 12 that the definitional sections are before this Court and this Court will not search in vain in order to find a request.

Also, this was supported by paragraph (66) of the complaint as that paragraph is buttressed by the Appendix B of the — appended to the complaint found on page 15 and also as buttressed by page 165 of the record and the District Court opinion on page 239 where the District Court says that these statutes are in issue.

The second point I should like to make is the general one with respect to be these oaths and that is that these oaths are current and prospective.

At page 245 of the record, there is a paragraph from the District Court’s opinion.

I shall quote it, “These plaintiffs here are simply required to state that they do not now and will not, in the future, engaged in the proscribe subversive conduct nor become a remaining members of a subversive organization as defined in the statute.”

That means that a professor then must swear that he now and for the future, he will restrict his activities to what’s required by the statute.

And that which is required by the statute strikes directly at the teaching functions strikes to the heart of the classroom because these also are not a search for data, they are not a request by the legislator — pardon me, the Legislature of the State of Washington asking the professors whether or not they might be members of the subversive organizations, but what these oaths do in fact is to require that each professors give the right answer, only one answer, namely, that they are not members of a subversive organization or they are not a subversive person.

And then and then only will they qualify for the possibility of hiring so long as they are further substantively qualified in their disciplines.

So that the point I should like to make here is that distinguishing all of the congressional investigation cases, the Committee cases and the State Committee Investigation cases, these statutes do not present the question of whether or not a State may search for data and it’s not before the Court and our position is, of course, the State has large powers, strong powers to search for data in a committee inquiry.

What these statutes do is to strike at the very heart of the teaching function.

Now, if I may direct to the Court’s attention at page 15 of the record, I should point out what it is that was circulated to the members of the faculty at the University of Washington, that is the oath in question here, Oath Form A.

There are basically two oaths, one is the 1931 oath, which is reproduced in the first paragraph, and the other one is the disclaimer oath in the second paragraph.

William J. Brennan, Jr.:

What page is it?

Arval A. Morris:

Page 15, sir.

William J. Brennan, Jr.:

Of the record?

Arval A. Morris:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

No, we do not object to taking an oath that the professors will support the Constitution of the United States and repeatedly some professors have hyphenated that answer — and specifically included the Bill of Rights.

There is no objection there.

Arthur J. Goldberg:

Under the — what — could you point out specifically the (Inaudible)

Arval A. Morris:

Yes.

The first oath requires that a professor by precept and example will do certain things, that is by doctrine, by his speech, by his classroom lectures.

And this was — this oath applies only to teachers.

It does not apply to any other state employee.

It’s aimed right up the teaching function.

It says that, “I will by precept and example promote respect to the flag, the institutions of the United States of America, State of Washington, reverence for law and order, and undivided allegiance to the Government of the United States.”

Byron R. White:

(Inaudible)

Arval A. Morris:

Specifically, it requires that a professor must teach certain things irrespective of the truth of those things.

Well, as set forth on page 195 of the record, Professor Stull Holt who is a professor of American foreign policy, requires — states that this requires that he must teach certain probable untruth with respect to United States conduct in the Mexican War and with respect to the United States conduct in acquiring the Danish West Indies and with respect to United States conduct on the occasion of the revolution in Hawaii in 1893.

William J. Brennan, Jr.:

I don’t quite get your basic argument.

You say these strikes at the part of the teaching profession and as a matter of policy, we might — and we might agree with you that — but isn’t up to a State to — to prescribe the kind of qualifications its — it wants for its teachers as teachers?

In others words, if a State were benighted enough to do so as a matter of your views of right policy or mind to say that, “I promise if I take a job in this university, I won’t take no more graduate courses.”

Is — isn’t that up to a State to do — to prescribe such qualifications as that?

Arval A. Morris:

Perhaps I can answer your question this way, Your Honor.

Underlying that notion is the idea of an employer-employee relationship, the master-servant relationship, that the master hires a servant, the servant shall do exactly what the master says.

William J. Brennan, Jr.:

(Voice Overlap) a mechanic and I tell him to do a job a certain way and the mechanic thinks it’s entirely wrong but if he wants to work as my mechanic, that’s the way he’s got to do the job.

Arval A. Morris:

Yes.

I believe it’s undeniable that the claims of academic freedom, which are recognized by this Court in Sweezy, run counter the usual prerogatives of an employer in the master-servant relationship.

Outstanding example of that is that this Court is hired by the United States by — by Congress in that sense.

Congress doesn’t direct this Court how to decide a case.

And I would suggest to the — to you that the freedom of universities is just as important as the freedom of judges.

William J. Brennan, Jr.:

The —

Arval A. Morris:

There is — not —

William J. Brennan, Jr.:

— (Voice Overlap) —

Arval A. Morris:

— the usual master-servant relationship here.

In fact —

William J. Brennan, Jr.:

The faculty of this University is not created by United States Constitution.

Arval A. Morris:

No.

The analogy doesn’t hold to the — this Court but it would certainly hold to certain courts of inferior status than this Court that is to the District Courts.

And Congress might very well argue that it had that power.

The — I think it’s clear that the claims of academic —

William J. Brennan, Jr.:

Mr. Morris, would you say that (Inaudible) an example of the fact is (Inaudible) right or wrong?

Arval A. Morris:

Yes, we do say that.

We say that in essence.

William J. Brennan, Jr.:

Where — where do you find that?

Arval A. Morris:

What it — what this oath requires is that by precept and example, the teacher —

William J. Brennan, Jr.:

(Voice Overlap) —

Arval A. Morris:

— shall teach undivided allegiance to the Government of the United States.

Byron R. White:

And you object to that?

Arval A. Morris:

Yes, we do.

Byron R. White:

Then what is that?

Arval A. Morris:

Because we don’t believe that, first of all, that any state agency has power to promote undivided allegiance to the Government of the United States when many appellants in this case, professors are members of religious orders who believe that their undivided allegiance belong to God, other members believe that their undivided allegiance belongs to United Nations, other members of the faculty believe their undivided allegiance belong to mankind generally and we don’t believe that the Fourteenth Amendment allows any State that power.

Hugo L. Black:

What do you mean by undivided?

Arval A. Morris:

Allegiance to no one other than the Government of the United States.

Hugo L. Black:

Can you read that as requiring that a man does not belong to the United Nations, does not belong to something else?

Arval A. Morris:

No, Your Honor.

Hugo L. Black:

(Voice Overlap) —

Arval A. Morris:

We believe that he can.

Hugo L. Black:

I see.

You believe that he can —

Arval A. Morris:

Belong —

Hugo L. Black:

— would you believe that their oath would prohibit them?

Arval A. Morris:

Well, if he were to promote by example and undivided allegiance to an agency other than United States Government —

Hugo L. Black:

Undivided.

Arval A. Morris:

Pardon me.

Hugo L. Black:

Well, that again comes under the word “undivided”.

Arval A. Morris:

Yes.

Yes, it —

Hugo L. Black:

The reason I’m asking about it is because I don’t know exactly what it means by that.

Arval A. Morris:

Well, the undivided allegiance —

Hugo L. Black:

Does that you mean that you — you construe that as meaning that a man can’t like something else if he wants to?

Arval A. Morris:

No.

That — that’s not our argument.

Our argument is that the allegiance that is undivided means the paramount allegiance, the whole allegiance.

Hugo L. Black:

Paramount.

You say that the Government couldn’t require paramount allegiance to itself.

Arval A. Morris:

Yes.

Else why with the State of Washington enact this measure.

Byron R. White:

Well, it just — it probably can’t require except to the conditions perhaps for employment.

Arval A. Morris:

Well, it would seem that that would be stricken at least by Pennsylvania against Nelson where this Court held that a State did not have power to protect the United States Government from subversion.

Byron R. White:

This is — this isn’t quite a subversion here in — in the (Inaudible) though.

Arval A. Morris:

Well, seeking to promote under by allegiance the United States Government.

Byron R. White:

— (Voice Overlap) I mean in the Nelson case, teaching respect to the flag.

Arval A. Morris:

Well, in fact, it’s quite clear that the history of this country sometimes could easily be construed as teaching disrespect to the flag, Your Honor.

Tom C. Clark:

I thought Nelson has preemption.

Arval A. Morris:

That’s correct, sir.

Tom C. Clark:

(Voice Overlap) it’s been on statute as you’ve said (Inaudible)

Arval A. Morris:

Yes.

Well, the basic point here is that not only is the congressional policy at stake with respect to fostering cultural exchanges because aliens have assigned their selves.

So in that sense, I think that congressional policy is at stake.

And so that the basic factors behind Pennsylvania against Nelson would be offered to them.

Tom C. Clark:

Nelson is not an employee of Pennsylvania.

Arval A. Morris:

No.

He was convicted felon.

Potter Stewart:

This isn’t necessary to be viewed as an effort by the State of Washington to protect the United States against subversion but rather, as I suggested earlier, the exercise in Washington’s rights to establish what qualifications it may want to establish for its — the people who teaches in the state university.

And if he wants to establish that we don’t want to hire anybody who has a graduate degree for instance, that maybe a very foolish policy in your opinion or in mind but why — why aren’t they authorized to do that?

Arval A. Morris:

Well, I would agree that the State of Washington has a wide latitude to — in its hiring policy.

However, it cannot condition its policy on the basis of unconstitutional factors and unconstitutional condition.

Potter Stewart:

Well, I suppose the person has a constitutional right to go to school and go to college and become a PhD.

But if he wants to work in a — in a university where the State says, “We don’t want anybody here who has anything beyond the bachelor’s degree,” then, do you think he has a constitutional right to work there nonetheless —

Arval A. Morris:

No, sir.

Potter Stewart:

— if he has a PhD?

Arval A. Morris:

I think you put the clear case.

But suppose they said, “You cannot work here because you’re a catholic.”

Byron R. White:

(Inaudible)

Arval A. Morris:

I know of no occasion which the Nineteenth Amendment been incorporated.

Byron R. White:

(Inaudible)

Arval A. Morris:

Well, if this Court were to incorporate the Nineteenth Amendment into the Fourteenth Amendment applicable to the States, there might be an argument but that’s a very far appeal decision.

Byron R. White:

(Inaudible)

Arval A. Morris:

Maybe I would think that the — the state power would maybe question of a denial of equal protection then it have to find some rational basis for that classification in relation to the teaching function and I’m not really sure if there is one.

Earl Warren:

Do you read this, this — this requirement as — as a meaning that a religionist could not conscientiously sign it because — because it says here that it must be undivided allegiance to the flag of the United States, do you interpret it that way?

Arval A. Morris:

Mr. — Professor Gordon Orians and Professor William —

Earl Warren:

No, I don’t care about Professor Jordan.

I’m asking you, you’re arguing here.

Arval A. Morris:

Yes, Your Honor.

Earl Warren:

You do.

Arval A. Morris:

We argue that the member of the Quaker faith, for example, cannot sign this.

Earl Warren:

Has your — has your Supreme Court so interpreted it?

Arval A. Morris:

No, Your Honor.

TYhis case — this —

Earl Warren:

What interpretation has your Supreme Court put on?

Arval A. Morris:

There has been none before our Supreme Court.

The 1931 oath, which is the first paragraph, has not been construed by the State Supreme Court State of Washington.

Byron R. White:

The District Court decided to abstain (Inaudible)

Arval A. Morris:

That is — that is not true.

The District Court —

Byron R. White:

They did dismiss that.

Arval A. Morris:

That’s right.

The —

Byron R. White:

(Voice Overlap)

Arval A. Morris:

— the District Court dismissed with prejudice having passed on part of the 1931 oath.

I can direct this Court’s attention to where the District Court passed on part of the 1931 oath, page 252.

The District Court opinion is divided first of all dealing with the disclaimer oath and then dealing with the oath of allegiance statute.

The last paragraph that runs over from page 252 to 253 says, “Insofar as the arguments heretofore considered, with respect to the loyalty oath, are advanced also in connection with the attack on the validity of the oath of allegiance statute, the preceding discussion of the points raised is applicable.”

It —

Arthur J. Goldberg:

I assume that the Attorney General (Inaudible)

Arval A. Morris:

Yes, the Attorney General has argued to the contrary but the statutes, the perjury statutes of the State of Washington are clear.

Revise Code od Washington 5.28.060 states, “A false affirmation of an oath is to be deemed perjury equally with the false oath.”

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

No, this Court has not enlightened as to the exact definition of the term “institutions”.

There are other words, however, that we believe are quite clear.

Arthur J. Goldberg:

Wouldn’t you argue that what the Constitution provision (Inaudible)

Arval A. Morris:

Well, I would assume that since the first part of the oath deals with a promotion by precept and example — pardon me, the first part of the oath requires that the person will support the Constitution and the laws of the United States —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

— I would assume that the institutions are not the legal institutions of the United States.

Potter Stewart:

Well, the Constitution would be one of the institutions of United States, wouldn’t it?

Arval A. Morris:

Well, I should think that the first part of the oath would already take care of that and that when construing the term “institutions” that it would not necessarily include legal institutions because the laws of the United States and the Constitution of the United States seemed to be first in that oath, a remainder part would come in underneath the term “institution”.

Potter Stewart:

What — what do you suppose that it mean?

Arval A. Morris:

Well, I should imagine it means the American way of life.

Potter Stewart:

Well, it might include the state liquor stores, Washington State liquor stores, don’t they?

Arval A. Morris:

Yes, it does and it may very well include that as an institution.

Potter Stewart:

The private corporations out there?

Arval A. Morris:

I should imagine that this could be all encompassing.

Potter Stewart:

And the institutions of marriage?

Arval A. Morris:

It may — it may well include marriage, it may well include — to the extent that we’re talking about the institutions in the United States, de facto segregation in the North and not so de facto segregation in the South.

Arthur J. Goldberg:

Home, church —

Arval A. Morris:

Yes.

Arthur J. Goldberg:

— and —

Arval A. Morris:

I —

Arthur J. Goldberg:

Those are the phrase you normally (Inaudible)

Potter Stewart:

The right to dissent, isn’t that one of our institution?

Arval A. Morris:

It would appear that the purpose of this oath is to require a conformity rather than the right to dissent.

If they — the right —

Potter Stewart:

I don’t quite see how you get that because of — of course, you can — I can argue it.

I couldn’t understand how you can but —

Arval A. Morris:

Well when someone —

Potter Stewart:

— institutions it says not limited to institutions, it doesn’t say —

Arval A. Morris:

Well, it’s limited to the institutions of the United States of America.

Potter Stewart:

One of which I should assume would be our constitutional traditions.

Arval A. Morris:

Yes, the traditional aspects, I would imagine.

Potter Stewart:

Including the Bill of Rights?

Arval A. Morris:

I should hope so but we don’t really know that.

The purpose in enacting this oath, it seems to me, is to promote a conformity of opinion, a — an assuredness that professors who are lecturing before classes will have a particular point of view else why requiring.

And that, it seems to me, is absolutely forbidden to the State (Voice Overlap) —

Potter Stewart:

I suppose, I — would — wouldn’t it be within the competence of a State to want to have and were therefore require its students to teach, since these are schools in the United States of America, to teach generally within the broad confines of our culture rather than to teach what might have been taught in the jungle in Africa, some about the tribal organization and that the way to — and that the way to if you’re sick, you go a witch doctor (Voice Overlap) —

Arval A. Morris:

I would agree that this is an attempt to prescribe the substantive content of the curriculum.

Potter Stewart:

Within the basic framework of — of our society rather than, as I say, some tribal society in — in the jungles of Africa.

Arval A. Morris:

I should think that to an anthropologist and teaching anthropology at the University of Washington, as Professor Valentine does at page 198 in the record, that the institutions of the Africans are quite relevant and they may very well be relevant to his discipline.

Potter Stewart:

So you don’t think it would be competent to a State to say, “Well, you can make and teach all you want about the way other societies are organized but if you’re going to teach here in the University of Washington in the United States of America, we’d rather have you devoted, primarily, to our institutions of — including all our institutions rather than devoted to a tribal organization and society where — where the witch doctor is the answer to all of everybody’s problem.”

Arval A. Morris:

I believe the First Amendment goes far enough to enable a man to have the right to teach that the institutions to this country are wrong.

And I should imagine that a professor would have the right underneath the First Amendment to teach that the institutions in this country are wrong and that they should not —

Byron R. White:

(Inaudible)

Arval A. Morris:

Again, we come back to the employment relationship underlying the State’s case as the notion that this is a master-servant relationship and this Court need not consider the context within which the rights are exhibited.

And the counsel admits that the claim of academic freedom runs contrary to the usual prerogatives of an — of an employer but that the claim of academic freedom and freedom of speech being embodied within the First Amendment, limits the State as an employer.

If these were a private school not subject to State action, then we wouldn’t see the problem.

But being a public school subject to State action, it appears that the Fourteenth Amendment incorporating the First is a limitation, denying the State’s power.

Byron R. White:

So the Board of Regents or whoever it is that runs the university cannot — it says that the provisions for employment for teachers not to — not to teach — not to teach their students that the Board of Regents is —

Arval A. Morris:

It’s subversive.

Byron R. White:

— it’s — it’s running the university law.

Arval A. Morris:

Yes, I would —

Byron R. White:

Whether they’re making mistake or they are — that they are not doing their duties.

Arval A. Morris:

I would think that this would control that.

Byron R. White:

So that the Board of Regents must employ it’s — continue to employ a teacher even though the teacher refuses to obey the orders of the Regents.

Arval A. Morris:

No, this is not a case where a person can be dismissed for insubordination such as Beilan or Lerner against Casey.

Byron R. White:

Well, I don’t why — I mean if it’s — I don’t know how you can get insubordination out of it, if the rule as the Board of Regents adopts to which the teacher violates is not constitutional.

Arval A. Morris:

Well, first, it seems to me that this is a case where the initial screen is an attempt to produce a group of people who will be then qualified to teach at the University of Washington.

That initial screen requires that by precept and example, they teach certain doctrines and then that they will not teach by any means to certain other doctrines.

So that we really have two groups, we have the large group from which people may very well be selected but the State, using the condition of freedom of speech, of association, says that on the basis of these conditions, you have to agree that you will do certain things and that you will not teach other things, that you will associate in a certain way and that you will not associate in a certain way, then you will be able to teach at the University of Washington.

Now, it seems that that is our point because it requires that the faculty member have a preordained conception of mind that he has to agree with the — what might very well be a transit whim of the majority of those Legislatures of the State of Washington as to what is proper and preceptive.

Now —

William J. Brennan, Jr.:

Mr. Morris, getting back to promoting institution, I notice that one of your witnesses at 197 testified, “If I were to sign the oath, I would feel that I had forced — declared falsely that I hold a number of important beliefs to which, in fact, I do not strike.”

For example, although I support the general concept of the law as part of our social system, there are many specific laws which I do not support any sense, this include the McCarran Act, the Smith Act, the stricter immigration and passport laws, the Landrum-Griffin Act and other labor laws and most legal provisions which outlawed gambling, prostitution, abortion, contraception and the use of certain narcotics.

Now, is it your view that if he signed this oath and taught those beliefs to Washington University students, he’d risk prosecution for having falsely stated that he would, by a precept and example, promote the institutions of the United States?

Arval A. Morris:

I believe that he wouldn’t — if he signed this oath, he wouldn’t teach those things for fear of a possible prosecution or dismissal.

William J. Brennan, Jr.:

Well, that’s only to say then if he did teach them that he would — that his reluctance of teaching would be because he thought that they did promote, not respect for but disrespect for the institutions of the United States?

Arval A. Morris:

Yes, Your Honor.

Yes.

Earl Warren:

Could we put that interpretation on the second part of the — of the first oath, why wouldn’t he be liable in the same way under the first part of it where he says, “I will support the Constitution and laws of the United States of America”?

What’s the difference?

Arval A. Morris:

I was very careful in answering Mr. Justice Stewart’s question not to say that that second part is not an issue.

The fact, they will swear to support the Constitution of United States.

There are some things —

Earl Warren:

And the laws.

Arval A. Morris:

I — I can’t say that Mr. Valentine would swear to support the laws.

Earl Warren:

But we’re — I’m not asking for Mr. Valentine.

I’m asking you about — about your legal theory and principle.

Earl Warren:

What is the difference between those, in that perspective, between those two parts of that one — of that one oath because he does say in the first part, “I, the undersigned, do solemnly swear that I will support the constitution and laws of the United States of America”?

Now, you — you told us in the beginning that you didn’t object to that.

Arval A. Morris:

I’m sorry, Your Honor, I said, I only did not object to supporting of the Constitution.

I’d be very specific in restricting myself and not saying that the — would support the laws.

Now, the only thing —

Earl Warren:

Well, are you saying then that you do object to that part of the — of the first sentence —

Arval A. Morris:

As counsel, I have to represent Mr. Valentine.

Earl Warren:

— “support the constitution and laws of the United States of America”?

Arval A. Morris:

As counsel, I have to represent Mr. Valentine.

He object —

Earl Warren:

I beg your pardon.

Arval A. Morris:

As counsel, I must represent Mr. Valentine and he objects.

Earl Warren:

Well, I know but —

Arval A. Morris:

The overwhelming bulk of the fact that he did —

Earl Warren:

Do you —

Arval A. Morris:

— not.

Earl Warren:

— support that — do you support that in — in legal theory?

Arval A. Morris:

Oh.

Earl Warren:

Do you support that as a lawyer here before this Court —

Arval A. Morris:

Yes.

Earl Warren:

— not what your client objects to but —

Arval A. Morris:

I would think that the sit-in demonstrations and the passive resistance movement that we have in our country demonstrate that when need not or could not necessarily be called upon to support the laws of the United States in the usual sense of the term “law”.

Hugo L. Black:

Do you mean obey the law?

Arval A. Morris:

If it is law, I believe they should obey.

I’m — and I —

Hugo L. Black:

If it’s a valid law, do you say that because a man thinks it’s bad —

Arval A. Morris:

No.

Hugo L. Black:

— he has a right to try to break it?

Arval A. Morris:

No, Your Honor.

Hugo L. Black:

Or did anybody else do it?

Arval A. Morris:

No, we do not take that position.

Byron R. White:

What are —

Arval A. Morris:

It’s a valid law, he should — he should follow it.

Byron R. White:

(Inaudible)

Arval A. Morris:

Support by precept and example, I take it means support by word —

Byron R. White:

Based on law.

Arval A. Morris:

That’s not what the oath says, Your Honor, it says by word and example.

Example is to obey the law but here we are coercing speech.

He may very well object to the law.

In fact, you may want to speak against the constitutional validity or against the law by way of repeal but by precept and example, he has to support it in the sense of coercing his word.

Tom C. Clark:

You can take the question by the word (Inaudible) supports Constitution and law.

Arval A. Morris:

Well, I know of no objection to that or made by any person.

I should think that be a silly objection.

Earl Warren:

What — now —

Tom C. Clark:

What then —

Earl Warren:

— now, we’re getting right back to what I asked you.

You said — I understood you to say to Justice Clark that — that no one would object to say that’s — support the Constitution and laws of the United States.

I thought you just told me that you didn’t agree to that.

Arval A. Morris:

The position I have to maintain here, with respect to Professor Valentine, is that he will take the oath and support the Constitution.

He will not support the laws of the United States if they require him actively to speak in favor of because there are many —

Earl Warren:

You — you are —

Arval A. Morris:

— that he likes to speak against.

Earl Warren:

— you — you are supporting legally his position that he does not have to say that he will support the laws as well as the Constitution of the United —

Arval A. Morris:

Yes.

Earl Warren:

–States.

Arval A. Morris:

Yes.

However, I want to make it very clear that we are not saying that he has any constitutional right to disobey.

He does not have a constitutional right to disobey.

He must obey the laws of this Republic as I see it and then rely on the orderly processes of Government to reverse them.

But when the statute says by precept, he shall support those laws.

Arval A. Morris:

It would seem to me that if he was a member of the legislature, he couldn’t speak for reversal.

Pardon me, I —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

— repeal.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Yes, yes, Your Honor, and peaceful speech binds itself in the University campus.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

That is our argument, Your Honor.

Earl Warren:

But you do — you also argue do you not that — that if the oath said this and no more, that you would still object to it, “I, the undersigned, do solemnly swear that I will support the constitution and laws of the United States of America.”

Arval A. Morris:

Yes, Your Honor, if the word were, “I will obey the — the constitution and laws of the United States,” we would have no objection.

Earl Warren:

Well, that isn’t the word of — “support” is the word used.

Arval A. Morris:

Yes, Your Honor.

Hugo L. Black:

You’re pointing out seemingly that the word “support” is susceptible of a number of meanings.

Arval A. Morris:

It may very well be.

Hugo L. Black:

And some of them that — do you argue that the State can’t require you to swear to it?

Arval A. Morris:

Yes, sir.

Hugo L. Black:

If one meaning of the word “support” as you say it — see it, is that it means you would be far and advocate and not recommend the change of the law —

Arval A. Morris:

Yes, Your Honor, the —

Hugo L. Black:

— takes away that freedom and then you say that because you think “support” means that in this sense.

Arval A. Morris:

The District Court passed on the prior restrain argument.

I assume that —

Hugo L. Black:

You what?

Arval A. Morris:

The — the lower court, the District Court passed on the prior restrain argument with respect to this statute.

And I would assume that in the argument made there may here as the same.

Hugo L. Black:

Well, the — does any of your argument, I have listened to it, I don’t understand it though, is any of your argument based on the idea that in this country, a man is not required to obey either the Constitution or the laws if he doesn’t like them and thinks they are bad?

Arval A. Morris:

No, we would — that is not our argument in any sense of the term.

In fact, I would argue to the contrary.

Arthur J. Goldberg:

Mr. Morris, with reference to Justice Black’ question however, you challenge against the word “support” (Inaudible) contrary to Article VI of the Constitution.

Arthur J. Goldberg:

The Constitution requires that all Executive and Judicial Officers of the United States and the federal states shall be bound by those affirmations to support this Constitution.

This is a mandatory provision of the Constitution, its binding upon the officers of the State of Washington by virtue —

Arval A. Morris:

Yes, sir.

Arthur J. Goldberg:

— of the Constitution.

Now, the Constitution requires them to enclose upon Executives and Judicial Officer of the United States, certainly (Inaudible).

Arval A. Morris:

I should see no difficulty there but restricted to support of the Constitution of the United States but this reads to the support of the Constitution and laws of the State of Washington and also to the laws of the United States an undivided allegiance to the Government of the United States.

Arthur J. Goldberg:

Well, I understand under the — the other part.

But I was referring now to the concerned about the word “supports” in terms of academic freedom.

It seems to me it’s very hard to put to say that constitutional term — the Constitution imposed in United States off and support the Constitution (Inaudible) as I understand it.

And (Inaudible)

Arval A. Morris:

Yes, sir.

Arthur J. Goldberg:

Susceptible to the word “support” of the Constitution and laws.

Wouldn’t it be different (Inaudible) a man in the United States (Inaudible)

Arval A. Morris:

If support means obey, then I would see — and I think your arguments —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

I —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

We’re in a neverland but the term “support” in the United States Constitution I take it would mean that a member of Congress couldn’t advocate that amendment would be —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Well, then I would accept the interpretation completely wherein any members of the state university.

Arthur J. Goldberg:

(Inaudible) the word “support”?

Arval A. Morris:

Well, basically, I don’t believe any professor does with the exception of Professor Valentine and he is the only one that I know of, of all the professors at University of Washington, some —

Byron R. White:

(Inaudible)

Arval A. Morris:

Yes, he is — he’s —

Byron R. White:

(Inaudible)

Arval A. Morris:

He is before this Court.

Byron R. White:

(Inaudible)

Arval A. Morris:

With reference to Professor Valentine, maintained his integrity of his position.

Earl Warren:

He’s the only one out of these 64 that takes that position?

Arval A. Morris:

That’s correct, Your Honor.

Arval A. Morris:

He’s the only one.

The rest object to the rest of the — from beginning —

Earl Warren:

Beg your pardon.

Arval A. Morris:

— that I will by precept and example, they all object to the remaining part.

Hugo L. Black:

The rest of it.

Arval A. Morris:

The rest of it.

Arthur J. Goldberg:

Did you point out further (Inaudible)

Arval A. Morris:

Of —

Arthur J. Goldberg:

— because you mentioned (Inaudible)

Arval A. Morris:

Well, support for reverence for law and order.

As a law professor is sometimes hard to maintain in the sense that you’re going to promote a reverence or all or inspirational quality for law and frequently is the — subjected to the dissecting rationale of the — the reason.

It seems that this consistent impulse starts.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

I would think that the word “reverence” means are inspiring, sort of a — a religious intonation.

Potter Stewart:

Part of the law, I suppose, is the law that permits or changes in repeals and statute, isn’t it?

Arval A. Morris:

(Voice Overlap)

Potter Stewart:

Is there a reverence for that process?

Arval A. Morris:

I — I believe —

Potter Stewart:

Is there ability of changing, otherwise, statute?

Arval A. Morris:

I would be first to argue, the First Amendment is law but I believe that is an attempt to obviate the broad diversity of dissent that First Amendment protects.

Arthur J. Goldberg:

Suppose you mean the word (Inaudible) by reverence of the law an order — that should be an order in the country?

Arval A. Morris:

In terms of obeying the law, yes, Your Honor, this is fine.

Arthur J. Goldberg:

Objecting to that, the professor’s object that certain law and order should prevail in a civilized society?

Arval A. Morris:

The professor did not object to that statement for that is not necessarily the construction of the — these terms.

Arthur J. Goldberg:

(Inaudible) reverence to law and order.

Arval A. Morris:

I shouldn’t — I should like to know what a professor of Physics or a professor of Mathematics would have to do in order to comply.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Although, it —

Arthur J. Goldberg:

Is there anything with the other sections (Inaudible)

Arval A. Morris:

Oh, well, yes.

Arval A. Morris:

I didn’t get to the disclaimer oath and I notice that time has passed for rebuttal.

But the subversive person section catches up the assistant to the assistant and this Court pointed out in Sweezy.

It also makes the professor the captive of his student in the sense that it says a subversive person is any professor who teaches by any means, any person to aid in the commission of any act intended to assist in the alteration of Government by revolution, force or violence.

The foreign subversive organization — organization section is not qualified by the terms “revolution, force or violence” and any student who should listen to a professor teach by any means and then commit an act intended to overthrow, it can basically makes the professor a captive of his student.

Mr. MacDonald.

Earl Warren:

Mr. MacDonald.

Kenneth A. Macdonald:

Yes, Your Honor.

Honorable Chief Justice and members of this Court, I should like to speak briefly to the religious aspects, which several of you have already inquired about, that is — is — either of these oaths, the 1931 oath, which you have been talking about mostly or the 1955 disclaimer oath, in any way invade the free exercise of religion of these plaintiffs or indeed invade their conscience, which I believe is also protected by the — the First Amendment through the Fourteenth Amendment.

And I suggest, if the Court please, that several cases of this Court point that way, that is first, Barnette, it seems to me which is cast somewhat in the complexion of this case where there was a compulsory oath of allegiance or a compulsory act whereby these children were sought to be patriotic or to be nationalistic and the Court struck this down as a violation of the free exercise of, of course, the religion, the Jehovah’s Witness religion, of these children.

It seems to me that this concept has been carried forth recently here, in this Court, in the case of Sherbert against Verner, which we have not cited in our brief, although we did cite Schempp, which I think also carries forth this concept.

And it seems to me that herein, the present context of this case, we have conditioned of employment that the professor will give an undivided allegiance to the United States from oath respect for reverent — in reverence of law and order, etcetera, that we have talked about earlier.

In addition, under the disclaimer oath, these professors are asked to say that they are not subversive persons or have not knowingly joined a subversive organization or a foreign subversive organization, which we believed, and the professors have stated this on pages 188 and 189 of the record in an agreed statement of fact, on agreed fact, first, that they believe all of the professors, I’m now talking about all of the professors rather than two, to whom I will address myself in a moment, that all of the professors feel that the oaths are a violation of their conscience.

The preceding finding of fact on page 188 relates solely to two professors who are Quakers, one of whom Professor Matchett is tenured, one of whom Professor Orians who is non-tenured.

They have asserted that in an agreed statement — in an agreed fact that the oath violates their religion specifically, the Quaker religion.

Now, Quakers, as I understand it, don’t have an undivided allegiance to temporal power.

These gentlemen have an allegiance if we use that word of that strength or they have a feeling or a devotion or a sympathy for people, for human beings, for human needs.

Potter Stewart:

Of course —

Kenneth A. Macdonald:

This —

Potter Stewart:

— wouldn’t — if you get to look at that phrase literally as you do and — and as your colleague does, nobody could qualify because nobody, I suppose, no — no rational human being has an undivided allegiance for his — for his country.

In other words, no matter how loyal a citizen he may be, he also has an allegiance to his parents, to his wife, to his children, to his friends, to his church, to his school, to his clubs.

Kenneth A. Macdonald:

True.

Potter Stewart:

No — no human being could sign that oath if it’s to be taken as you literally have construed with it.

Kenneth A. Macdonald:

And I think that that is one of the problems of the oath, if Your Honor please, that no human being can and if this is true, why should the State, as a condition of employment, suggests that human beings do something which is in fact untrue which leads to hypocrisy and particularly when this is based in the framework of teaching young people.

Potter Stewart:

I was simply suggesting that the language couldn’t rationally be construed the way you construe it.

Kenneth A. Macdonald:

If Your Honor please, I suggest that Barnette, a simple flag salute, which I think most of us would agree with accepting for the religious overtones that people would be able to salute the flag in that case.

These youngsters and their parents stated that it was against their religion that they not have a graven image.

Now, this case as in Barnette, if these gentlemen assert that they cannot sign because of reasons of conscience, their assertions of First Amendment freedoms is not running into or colliding with the assertions of anybody else.

Everybody else, if they wish, can take this oath.

The only persons who would not be taking it would be as in Barnette, those people who felt that it was contrary to their religion.

Now, secondly, I think that the extension, if you — if I may so call it, of the free exercise in Sherbert takes up this case, that is if the Seventh Day Adventist in North or South Carolina, I — feels that her free exercise of religion has in anyway been prohibited by reason of her losing her employment and not under state statute being eligible for unemployment compensation benefits, then I suggest that the condition imposed upon these professors is precisely the same type of condition and is indeed a prohibition of the free exercise.

Kenneth A. Macdonald:

Now, question, of course, is what is religion?

Does religion run over into conscience and is conscience protected?

I suggest that both under Barnette, under Speiser against Randall, certainly under Cantwell against Connecticut that a person’s free conscience is protected by the First Amendment as absorbed by the Fourteenth Amendment and applicable to the States.

And I suggest that if this is, if it is indeed, a violation or an intrusion upon the rights of these professors, then I think that the mandate of the First Amendment should takeover even though this Court might think that this is but a limited invasion.

The Court has spoken.

Justice Madison has spoken in the past of the dangers of what is now a limited invasion and later maybe a torrent.

Now, I feel that the literal interpretation of the First Amendment, and I regarded as a charter of our Government, is applicable to this case that we are faced with state action and that the rights of conscience of all of the professors as opposed to the — were limited, I may call them, religious rights of two of the professors have, in fact, been affected as by what we call an unconstitutional condition of employment.

Now, we are not asking, I am not asking that the oaths should be declared unconstitutional as to all persons, only as to those persons who seek to raise the issue of conscience.

I mentioned to Justice — Mr. Justice Stewart earlier on the question of what difference does it make and I think that it makes some difference in the environment in which we’re acting again —

William J. Brennan, Jr.:

(Inaudible)

Kenneth A. Macdonald:

I am arguing —

William J. Brennan, Jr.:

— who assert rights of conscience.(Voice Overlap) —

Kenneth A. Macdonald:

Yes, I am arguing — I am arguing that.

And I am arguing, I believe something further which would be implicit and it is this that there is no hearing that we can see under the statute.

This has come up before this Court, has been sent back for a determination as to whether or not there is a hearing under the disclaimer oath and the Supreme Court of the State of Washington said, “No.”

When your remand went down, it asks the Court there to act — to assert if there was a hearing at which these professors could explain or defend.

The answer was no.

Although the Court said, as Mr. Fuller will advise you that there was a hearing for tenured professors under the University of Washington tenure program.

However, we have asserted in our brief what — that this is — in essence a sham hearing because the Board of Regents of the University of Washington acting under their delegated authorities, as pointed out by Mr. Justice White, have said, if the answer is that such a hearing that I will not sign then that the State, through its Regents, will follow the law and will discharge these professors.

Now, I would think, if Your Honor please, that even —

William J. Brennan, Jr.:

You say, there had been hearings or —

Kenneth A. Macdonald:

No.

William J. Brennan, Jr.:

No.

Kenneth A. Macdonald:

There are — that —

William J. Brennan, Jr.:

It is a ruling that tenure —

Kenneth A. Macdonald:

Yes.

William J. Brennan, Jr.:

— professors aren’t entitled to this.

Kenneth A. Macdonald:

Is that tenured professors are entitled to a hearing consistent, however, with the law of the State of Washington and if the answer is that the professor has not signed the oath, then he shall be discharged.

William J. Brennan, Jr.:

But in fact, nothing like that has just happened?

Kenneth A. Macdonald:

In fact, no hearing has been held at this time, as of — of — at this time.

Kenneth A. Macdonald:

Now, I feel, moreover, if Your Honor please, that if such a hearing, even if it were to be held, even if it were allowable under state law, an interpretation has been to the contrary, I think that under the free exercise cases and even under the establishment cases, that it would be contrary to the First Amendment to have these professors go before that hearing and explain their reason or what is their conscience based upon and what is their religion based upon, which I think is an added defect of the present situation.

I should like to reserve the balance of our time, if the Court please, for Mr. Morris on rebuttal.

Earl Warren:

Mr. Fuller.

Herbert H. Fuller:

Mr. Chief Justice, members of the Court, distinguished counsel.

It’s true that we must safeguard our constitutionally guaranteed liberties.

It is also true that we must protect ourselves against the dangers of subversion.

Now, having said this, we’ve said very little toward assisting the Court in determining case before it because what is needed is not generalities, however, true these generalities maybe.

But a detailed analysis of the statutes, a consideration of the context out of which they overruled and an understanding of the statutes and how they’ve been applied and interpreted by the courts in our State.

Now, the course of my argument, I would like to deal first with the Subversive Activities Act, passed in 1951 as amended in 1955 and devote the latter part of the argument to the 1931 oath requirement.

Well, I don’t purport to go into detail in the 1951 Act.

I would like to very quickly present a bird’s eye view of what it requires.

As the Court knows, the Washington Legislature did not simply shoot an arrow into the blue when it passed the Subversive Activities Act of 1951.

Prior to this Act, the Governor of the State had requested that it be passed.

Prior to the Governor’s request, extensive hearings had been held by a state investigating committee.

Now, when the Act was finally passed, it was patterned in large part after the so-called “Ober Act” in the State of Maryland, consisted of some 22 sections.

The first section is, perhaps, the most important in the entire act, it’s the definitional section.

And in a few minutes, because if the importance of this section, I would like to drawback to it.

The next three sections relate to criminal sanctions and they are not before the Court.

The following five sections relate to the appointment of a special assistant attorney general.

Now, these are not before the Court because four out the five have been vetoed by the Governor.

The one remaining of these five sections merely requires that the Attorney General report biannually to the legislature on subversive affairs.

This brings us then to Section 11 which is one of the key sections as far as the state loyalty program is concerned.

I’m not going to attempt to quote directly from the statutes but only to paraphrase them.

Section 11 lays down the base rule that no subversive person shall be eligible for public employment in the State of Washington.

Section 12 establishes an administrative program which places a certain amount of power in the hands of agency officials to determine whether those and their employee are subversive persons within the meaning of the 1951 Act, as amended — later as amended.

Now, Section 12 is one of two sections, which was amended by the 1955 Act.

Section 13 provides that this requirement as to those who are employed, as opposed to applicants, shall not be applicable to non-sensitive areas of state government.

Now, at this point, I should advise the Court that in the entire State of Washington, I know of not one area which has been declared non-sensitive.

I think we should be frank about that.

We say that this is evidence of the very poor level of enforcement which the Act has received.

Herbert H. Fuller:

Section 14 requires a, what we will call, a one-shoot affidavit requirement, a disclaimer as of — for all employees who are employed as of June 1, 1951.

In Section 15, sets up a rather elaborate hearing procedure for those who have been accused of being subversive persons under the Act.

Again, I should be frank with the Court and tell the Court that I know of not one instance on Section 15 has ever been employed.

The next section requires an affidavit from a candidate for election.

The last section which I would like to mention is Section 19 of the Act.

This is a key section because it is a mandate.

As we see it, it is a mandate by the legislature that the Act be strictly construed with an idea of not infringing upon a person’s constitutionally guaranteed liberties.

This Section is very short.

I’d like to read it.

(Inaudible)

Herbert H. Fuller:

Section 19, page 82, Your Honor, in our motion to dismiss or any alternative to affirm.

Page what?

Herbert H. Fuller:

Page 82, Your Honor, Section 19, “Nothing in this Act shall be construed to authorize, require or establish any military or civilian censorship or in anyway to limit or infringe upon freedom of the press or freedom of speech or assembly within the meaning, in the manner as guaranteed by the Constitution of United States or of the State of Washington and no regulation shall be promulgated hereunder having that effect.”

As it —

(Inaudible)

Herbert H. Fuller:

By this litigation, do you refer, Your Honor, to Nostrand against Little, Nostrand against Balmer?

Your Honor, it has never been before our Supreme Courtm, except for that litigation to which you’ve refer, which is really all one series of litigation.

It was a declaratory judgment action.

Again, I can say, being frank with the Court, that in the entire State of Washington, I do not know of one instance when an individual has refused to sign the oath.

There may well be instances, I would be surprised if there weren’t, but I know of no instance.

Byron R. White:

None of these — none of these people have refused?

Herbert H. Fuller:

No, Your Honor, not a single one and the reason is this.

The University of Washington has been protected from the operation of the 1955 Amendatory Act which requires the disclaimer requirement almost from the time that the Act came into force.

Before the oaths could actually be distributed and — and — in other words, before a person had a chance to make an operative refusal, there was an injunction and there’s been an injunction — prohibiting the University from demanding the oath.

Now, there’s been an injunction in effect from that time until the present day or —

William O. Douglas:

(Voice Overlap) —

Herbert H. Fuller:

— prohibiting the University of Washington from demanding the oath required by the 1955 Act.

William O. Douglas:

By the three-judge court?

Herbert H. Fuller:

There’s been an injunction by the — first by the — by the State Supreme Court.

Now, after the case was sent here, remanded back, again appealed to this Court and this Court dismissed for one of the substantial federal question, there was no injunction for a short time.

Herbert H. Fuller:

Now, during that short time, the mechanics were started to demand the oath of the –of the University professors and the other employees but it was such that the they couldn’t demand the oath until October, a number of them were away and the mechanics were such that it would’ve required four or five months to demand that the oath be signed.

So what the University said in effect, and here I’m paraphrasing it, they said, “You shall sign the oath by October 1st, demand is hereby made that you sign the oath by October 1st.”

And I believe it was June, possibly July, but I believe it was June, injunction was issued by the three-judge court stating the hand of the University from demanding that they sign the oath.

It’s true there are many statements of intentions where some of the appellants, in this case, state that they certainly have no intention of signing the oath but there’s nothing to prevent them from changing their mind.

There has been no refusal on which a hearing could be predicated.

What question do you raise in the second case, is it Balmer which we dismissed this — the one of the substantial federal question that is not in here?

Herbert H. Fuller:

Your Honor, that was Nostrand against Little.

The first case was Nostrand against Balmer.

Mr. Balmer passed away and the title of the case was changed.

(Inaudible)

Herbert H. Fuller:

The second time that it came before this Court, it was called Nostrand against Little.

(Voice Overlap) —

Herbert H. Fuller:

At that time a number of issues were raised in the — in the brief of the appellants in that case.

There were First Amendment arguments, there were Fourteenth Amendment due process arguments, bill of attainder arguments and I’m not sure about some of the other arguments.

But they were — I think it’s fair to say, substantially, the same as the arguments in this case.

There maybe some others which is religious aspect, but I think it’s fair to say that they were substantially the same as the arguments in this case.

I said a moment ago that the University of Washington has had a judicial umbrella in the form of an injunction virtually from the time that the 1955 Act has been passed.

The result of this is that the University of Washington provides a test tube example on how a state agency might operate under the 1951 Act without the 1955 Act.

We submit that the level of enforcement has been sufficiently low.

That checks as to an individual’s loyalty have been sufficiently desultory to justify the legislature.

In passing the 1955 Act, I’d like to quote a couple of examples to that effect.

Turning to the record, I would like to quote part of a statement by Professor Reed who is one of the appellants in this case, on page 200.

Now, Professor Reed, the Court will recall was a visiting professor from Australia, who decided to burn his bridges behind him and teach at the University of Washington.

Was he informed of the oath requirement prior to his coming to the University of Washington?

On page 200, before the bottom of the page he says, “When I accepted this visiting appointment, I was not informed that an oath of any nature might be required to me.”

Less — thus, would seem to be a mistake on page 201 about three-quarters of the way down the page, he says, “I was at no time informed that an oath of any nature might be required at me as a condition of my employment by the University.”

I now direct the Court’s attention to a statement by Professor Birnbaum during the course of his deposition.

The Court will recall that Professor Birnbaum was a member of the personnel committee of the Mathematics Department.

Now, a duty of the personnel committee is to — is to recruit new members for that particular department.

What sort of checks do we have as far as loyalty or membership in a subversive organization?

Herbert H. Fuller:

Well, on page 62 of the record, in response to counsel — question from counsel as to the activities of the committee and more particularly Professor Birnbaum’s rule, counsel for Professor Birnbaum asked the following question, question, almost to the bottom of that page, “Do you have any knowledge of any instance in which there has been an exploration of a candidate’s loyalty to the State of Washington?

Answer: “No.”

Question: “Do you have any knowledge of any instance in which there has been an exploration of a candidate’s loyalty to the United States of America?”

Answer: “I don’t know of any preliminary exploration of that kind.”

Question: “Were you directed by anyone at the University of Washington to apply such standard?”

Answer: “A matter of clarification, before the loyalty oath issue or after.”

Question: “Well, have you been directed by anyone at the University of Washington at anytime to apply any such standard?”

Answer: “I’ve not been expressly asked, no.”

Now certainly —

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

That is correct, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

Your Honor, I agree that a — an alien cannot agree to, by precept and example, promote undivided allegiance to the United States of America by flag, essentially to mean United States of America.

The question is not before us whether if any university or state was so foolish as to not allow aliens to be in its faculty.

The — we say that there has been no time at which an alien has been excluded from employment because he’s been required to take this oath.

Now —

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

This is one of those old interpretations and nobody can find the source of it but the oath has been applied in such a way and interpreted it in such a way as long as we know, perhaps, from the time it was first passed so that it would not apply to aliens.

Now, it is true that a similar oath is requested of aliens.

But in the similar oath as the record will show, I’m sorry, I can’t point to the exact page, but there’s an example by Professor Aldenderfer in which Professor Aldenderfer in a memo to the people in this department or that one particular alien said, “I will support allegiance — undivided allegiance to the United States insofar as this is consistent with my citizenship blank country,” or something to that effect.

At no time have we ever asked an alien, to my knowledge, to sign an oath that he will provide undivided loyalty to the United States.

It is not done now.

We do not know that it will be done in the future.”

William J. Brennan, Jr.:

Mr. Fuller, may I ask, I was wondering if I correctly sensed this, some of the things that you’ve been saying, an argument that none of this really is wide yet far consideration to the constitutional questions anyway.

Are you suggesting that?

Herbert H. Fuller:

Yes, Your Honor, I am.

I’m not saying that the Court is without power or authority to pass on the constitutional questions.

I do say that it — it would be much better if we have this factual bedrock —

William J. Brennan, Jr.:

You mean by — much —

Herbert H. Fuller:

— with actual hearing.

William J. Brennan, Jr.:

— much better if we waited an actual demand and the refusal by someone on some basis either at the hearing or otherwise and — and that we reach this after your courts submits to them an application of the statute?

Herbert H. Fuller:

That is correct, Your Honor.

If there were an actual hearing, if they were an actual, there were actual interpretations of the particular constitutional provisions set forth in the hearing, there was an actual factual bedrock of refusal by somebody, I would say that the posture for decision by this Court would be much better.

(Inaudible)

Herbert H. Fuller:

I’m not sure but I — as recall in numbers three or four, counsel may correct me on this, but a very small number that there are a number employed by the University of Washington and this is not —

William O. Douglas:

(Inaudible)

Herbert H. Fuller:

— in the record but by other universities of the State as well.

William O. Douglas:

Well, as far as those aliens though, who are appellants here, that we are in bedrock.

Herbert H. Fuller:

I do not think we are, Your Honor, because there is no demand that they take the oath.

There has never been a demand that they take the — my oath, I’m referring to the — to the 1931 of oaths.

William O. Douglas:

You’re really saying then that until the University actually picks out Professor Valentine or professor somebody else and says, “Here, if you’re going to teach here, sign this,” until that happens, there’s no reason for us to reach any kind of decision.

Herbert H. Fuller:

That’s correct, Your Honor.

I think the whole difficulty —

William O. Douglas:

That’s — that’s part of an argument against Federal Declaratory Judgment Act.

That’s —

Herbert H. Fuller:

That’s true.

I think that the — there’s a lot to be said for the federal declaratory judgment action.

But at the same time, I think, one of the difficulties where this entire litigation is a fact that because of very declaratory nature of the case as the decisions of the Washington States Supreme Court indicate is just about impossible to tell the difference between dicta and holding of the case because it doesn’t have that factual bedrock.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

Yes, that’s correct.

We do have an oath form before us.

Now, I grant you that this Court does have the — the power and the authority to find something void on its phase.

We submit, however, that the state high court should be permitted in an actual case to pass upon the definitional sections when there’s an actual case before it.

And the same thing is true with the 1931 oath, as I’ll try to explain in a few minutes.

We say that a state high court should be able to pass on those definitional sections.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

What I’m saying, Your Honor, is that there should be an actual refusal by some individual before this matter is decided by this Court.

Arthur J. Goldberg:

Let me ask you this.

This oath as I understand it, correct me if I’m wrong (Inaudible)

Herbert H. Fuller:

You’re referring to the 1955 oath.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

With regard to the 1931 oath, a form is prescribed by the statute.

With regard to the 1955 oath, no form is prescribed by the statute.

Arthur J. Goldberg:

Now, therefore, referring to page 15 of the record, (Inaudible) the first paragraph, is that the 1931 oath (Inaudible)?

Herbert H. Fuller:

Page 15 of the record, Your Honor?

Arthur J. Goldberg:

Yes.

(Inaudible) that says the text was as follows, is that —

Herbert H. Fuller:

15, page 15.

Arthur J. Goldberg:

15

Earl Warren:

Of the record — of the record.

Arthur J. Goldberg:

Is that the record?

Herbert H. Fuller:

Yes.

Arthur J. Goldberg:

First paragraph is the 1931 oath?

Herbert H. Fuller:

Yes, that is correct.

However, the — the pretrial order must be read as a whole and certain portions of the pretrial order explain that this oath is not, as of aliens, in this exact form.

Arthur J. Goldberg:

I understand.

But I am not asking it here.

Herbert H. Fuller:

Yes, I’d be happy to, Your Honor, and I had reserved that for latter part of my argument but I would like to come to it or I rather come to it right now, Your Honor, as long as Your Honor has mentioned it.

Let me say first of all that I’m the first to admit that these words are susceptible of different interpretations.

I think that the word “institutions” is particularly susceptible with the number of — of interpretations.

We feel — let me start with the word “flag” we feel that word “flag” really means the United States of America.

After all, the flag is nothing but a cloth — piece of cloth with the insignia of country on it.

As far as institutions —

Arthur J. Goldberg:

I think flag is a definite term.

Herbert H. Fuller:

Flag is — is a definite term.

It’s one way the legislature had of referring to the United States of America and to the State of Washington.

Far as institution is concern, we feel that it refers to that which has been instituted, in other words, the foundation, in other words, our basic constitutional republican form of Government.

That is our interpretation of the word “institutions”.

We do not think that it includes everything that has been mentioned by counsel and by some members of the Court.

That is our interpretation of the word “institution”.

Tom C. Clark:

(Inaudible)

Herbert H. Fuller:

Our interpretation has been made known to those assistants who work for the University.I don’t know that there is any written interpretation.

There may well have been oral opinions from time-to-time.

Tom C. Clark:

Do you make opinion (Inaudible)

Herbert H. Fuller:

No, Your — no, Your Honor.

That is something that has existed for years and years.

Now, I have searched the files and I found no communication from the Attorney General’s Office.

I’m not saying that there has never been any.

After all, this was passed in 1931.

I’m only saying that I know of none.

All we can say is as long as we know or as far as we know, there has never been a request that an alien signed the oath and the statutory form required by the statute.

Tom C. Clark:

(Inaudible)

Herbert H. Fuller:

I’m the Deputy Attorney General for the Seattle area.

Now, part of my responsibility in the Seattle area is with the University of Washington.

However, other attorneys are assigned more particularly to the university to —

Tom C. Clark:

I meant the attorney —

Herbert H. Fuller:

— represent them.

Tom C. Clark:

— Attorney General’s Office.

Herbert H. Fuller:

Yes, Your Honor.

The Attorney General does provide legal assistance to the University of Washington and to the other state universities.

Tom C. Clark:

Universities pass the opinion of the — your office (Inaudible)

Herbert H. Fuller:

We would advice them as I’ve just stated and part of our advice will the based upon the long practice.

We think that our Court would give considerable weight to the fact that for a third of a century as far as we know it’s been done this way.

Now, the point is that whether it were right or wrong, it’s not the important thing.

The important thing is that the Washington State Supreme Court is not passed upon it.

Now, it’s done this way, our office would advice that it be done this way and we know of — there is no indication that it will be done in another way in the future.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

Yes.

I wasn’t really reading anything.

Arthur J. Goldberg:

But —

Herbert H. Fuller:

I was just saying what my views aren’t are and my views are that the institution means our basic republican form of Government.

Now, I know that this is rubber tied things susceptible to a certain amount of stretch and there could be a lot of questions, does that include the secret ballot?

I would answer yes.

The next question — the next statement could be, “Well, we didn’t have a secret form of ballot when America became a country.”

I know that there are number of questions that can be asked regarding institutions.

But I say that is our — its a little like due process.

It’s our basic republican form of Government.

Arthur J. Goldberg:

(Inaudible)

Herbert H. Fuller:

Now, of course the term has a particular connotation that’s present.

And it’s a little difficult for me just, all at once, to give a definition of the term “establishment” but I don’t — I wouldn’t pick that pick that definition.

Arthur J. Goldberg:

I think it’s the leading one.

Herbert H. Fuller:

Well, it maybe the leading one but I submit there are number of other definitions of the word “institutions”.

And I think that’s one of the difficulties here as we have so many different definitions and the — the Court that should —

Hugo L. Black:

Maybe that’s the difficulty with your Act?

Herbert H. Fuller:

I beg your pardon.

Hugo L. Black:

Maybe that’s the difficulty with your Act?

Herbert H. Fuller:

That might well be, Your Honor.

But we submit that if that is the difficulty, at least, our state high court should have the first opportunity to apply a statutory of laws and perhaps make at least definite.

William J. Brennan, Jr.:

Telling this, I — I think I heard Mr. Morris said at the outset of his argument that you differed with him whether — if one made a mistake just to — just business of institution, he might be prosecuted criminally if he signed this on the — and then will prosecute — will be prosecuted for.

Hugo L. Black:

I do very definitely differ with him.

We have no illusions about the 1931 oath.

That’s not backed up by the sanction of perjury.

The statute he just cited there had used the word “oath” but it doesn’t use the word “promissory”.

William J. Brennan, Jr.:

Although, what’s the meaning of — I don’t know.

Is this a — the text is as followed that says, “Teaching faculty oath” and that — what — if this is it as we reproduced at page 15 encloses with, I understand that this statement in oath are made subject to the penalties of perjury.

Herbert H. Fuller:

Now, the problem is that mechanical difficulty of having the two oaths combined.

And then mechanically, the University has combined the 1931 oath with the 1955 oath.

William J. Brennan, Jr.:

Well, if I didn’t know anything about 1931 and 1955 and I were a faculty member, would I read this reasonably as meaning of that last sentence but if I were wrong about something I said as to the first paragraph, I might be prosecuted for perjury?

Herbert H. Fuller:

I think it’s got to be conceded that mechanically the way the oaths are mechanically put together, that a person may get the wrong idea and think that the first part would have a sanction of perjury.

We submit that the first part does not have a sanction of perjury.

Earl Warren:

Why does —

Byron R. White:

At least he got the sanctions of being fired though I suppose if they (Voice Overlap) —

Earl Warren:

Why doesn’t it have the sanction of perjury?

Herbert H. Fuller:

Because, Your Honor, the first part of the oath, I’m talking strictly about the 1931 oath, is promissory in form.

And traditionally, there’s no case in our jurisdiction, Your Honor, I admit, but traditionally, promissory oaths absent some particular statutory mandate have not been held to be the basis for the prosecution for perjury, at least in my —

Byron R. White:

(Inaudible) couldn’t be fired, don’t you?

Herbert H. Fuller:

I think that is correct.

I’m not saying that there is — there is no sanction.

I am saying that there is no —

Byron R. White:

Yes.

Herbert H. Fuller:

— criminal sanction.

Now —

William J. Brennan, Jr.:

Well, that — that looks to me or I must suppose the vagueness, the very form of the oath itself.

Herbert H. Fuller:

I appreciate the fact that there are number of objections with regard to vagueness in the oaths.

Our point is that the Washington High Court should have the opportunity to pass upon this vagueness point.

Four years ago, almost to the day, I came before this Court when I was representing the State of Washington in an action, Nostrand against Balmer, it recalled Nostrand against Savelle, stated to this Court that the two professors, Professors Nostrand and Professor Savelle, would very probably be entitled to a hearing which they could explain or defend their refusal to take the oaths required by the 1955 Act.

Now, four years later, I come before this Court and I say that as this case was remanded to the State of Washington for determination of that very question and when the case was argued before the Washington Court, the office of Attorney General argued that the statutes of the State of Washington would seem to allow such a hearing counsel for Professors Nostrand and Savelle argued that the statutes would allow and no such hearing.

Now, the Washington Court held that the professors would be entitled to a hearing.

We, very strenuously, disagree that it will be a sham hearing.

We say at the very least try us, let us see.

We think the Supreme Court of the State of Washington would not sanction a sham hearing.

What — when you say a sham hearing, supposing that there is a hearing and the professor goes before the present committee and he says, “I don’t want to sign this oath because I don’t believe in oaths.

That’s my reason for not signing it.”

What would happen?

Herbert H. Fuller:

I can’t guess the disposition of the particular committee.

I don’t know what the hearing —

But what — what —

Herbert H. Fuller:

— officer would decide on all the evidence.

— what — what authorities would I have been to these proceedings, what the hearing really means here?

Herbert H. Fuller:

The precise question —

If that was all there was, wouldn’t — wouldn’t the University were required to discharge him automatically under the terms of the statute?

Herbert H. Fuller:

I don’t think that — that university in every case is required to discharge an individual if he refuses to sign the oath.

I can’t answer your question because of the particular factual basis of it but let me take another example.

Let me take an example of whether an individual belong to the Communist Party, say several years ago.

And the individual attempted to resign from the Communist Party but a number of years had gone by, he no longer had contact with those individuals that he had once known, he did write a letter to somebody and yet he wasn’t sure whether he could sign the oath or not.

We say that such an individual came forward, demanded a hearing and at this hearing, stated that he had written a letter to the last person he knew, he did knew whether he was still mailed back his membership card.

He didn’t know whether he was still carried on the membership rules.

We say that if such a person would kept for employment that it might well be affirmed by the Washington State Supreme Court that ever came before it.

We say, in other words, that would not be a sham hearing.

It would be a hearing with a very real meaning.

Now, there are two other categories.

Not only those of academic tenure but those with civil service tenure and those who, for one reason or another, have no tenure at all.

The real significance of the Court’s decision in Nostrand against Little, the real significance was the fact that the Washington Court held that they could not interpret the 1955 Act without reference to any other act.

They took the 1955 Act on the hand and interpret it along side of the Act which gave the Board of Regent certain powers.

They read them together and came out with the hearing requirement.

We say if the Court did this with that particular statute, they might well compare it with another statute such as the civil service statute passed in 1951 or the Administrative Procedures Act passed in 1959.

They compared it with one statute.

They might well compare it with another.

William J. Brennan, Jr.:

Speaking it now with the non-signee, they might say that they were also entitled with a hearing?

Herbert H. Fuller:

Let me take them one at a time, Your Honor.

Let me take first of all, those who are not teachers at all, those who are non-academic personnel and who would be covered by, let us assume, this classified service of the State Civil Service Act, Section 5 —

William J. Brennan, Jr.:

Because they don’t take — those folks don’t take the first paragraph or do they?(Voice Overlap) —

Herbert H. Fuller:

That is correct.

William J. Brennan, Jr.:

Yes.

Herbert H. Fuller:

That is correct.

They would only — the non-academic personnel would only take the 1955 or if not, the 1951 oath.

The Section 5 of the State Civil Service Act authorize the various institutions of higher learning to set up the personnel committee.

This was done at the University of Washington.

The personnel committee met and it passed rule — Rule 14, which actually adapted rules and procedure which are set forth in the Civil Service Act, so this would prepare the hearing for those.

Now, the key question is, what about those individuals that have neither civil service tenure nor academic tenure, would they be afforded a hearing?

Herbert H. Fuller:

Now, the going gets rough.

We say that they would be by virtue of the State Administrative Procedures Act passed in 1959.

State Administrative Procedures Act, in Section 9, provides that in any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.

Now, what did they mean by contested case?

Well, Section 1 defines a contested case as a proceeding before an agency in which the legal rights, duties or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.

Would there be a constitutional right to a hearing?

We don’t know.

We say it would be better to err on the side of allowing too much due process rather than allowing too little due process.

We propose to grant them a hearing and I don’t know who can raise the question of a hearing would be improper.

I’d like to add that the office of Attorney General is very much aware of the serious nature to an individual who has been discharged on security reasons.

I don’t know that this has ever been done but we recognized that it is serious.

For that reason, along with the mandate contained in Section 19 of the Act, we propose to construe the definitional sections very strictly.

We propose whenever there is a doubt or a question to allow a person a hearing and a fair hearing.

We cannot meet the objections to those who feel that the loyalty act such as this is unwise.

We can meet the objections of those who claim that there is a procedural deprivation.

We can meet the objections of those who claim that we are interpreting the Act in too broader fashion.

Next, I would like to deal with those definitional sections very briefly.

But before I do, I’ve already discussed the 1951 Act.

I would like to remind the Court that in 1953, the Washington Legislature amended the definition of subversive person to make the element of scienter even more explicit.

In 1955, we say because it may be had been dissatisfied with the level of enforcement, the Washington Legislature amended the Act in two places and added two new sections.

Section 12, if the Court will recall, set up an administrative program.

As the Court knows, the first section of the 1955 Act added to disclaimer requirement that a person must disclaim his present membership.

I emphasized the word “present membership” in the Communist Party or other subversive organization.

The second section brought us into conformity with the non-sensitive provision which was Section 13 of the original act.

Now, the third section was a very harsh section.

It required that those organizations which were on the United States Attorney General’s list be deemed subversive organizations within the meaning of the Washington Act.

I hasten to add that this Section was declared unconstitutional by the Washington States Supreme Court.

The last section simply states that Communist Party is declared to be a subversive organization and membership is a subversive activity thereunder.

As far as the oath form itself is concerned, I’ve already stated in response to a question that the oath, so far as the 1955 portion of the oath is concerned, is made by the Attorney General’s Office.

It is, by and large, followed by state agencies even though there is no absolute requirement that they do so.

Herbert H. Fuller:

A city or a county may choose to follow the — an oath of their own choosing.

We have supplied them with an oath and I can say that by and large, they have adapted our oath form.

Now, an examination of the oath itself shows that not all of the oaths comes from the 1955 Act because the mandatory portion of the 1955 Act only requires that a person state whether he is a member of a Communist Party or other subversive organization while, in fact, more is asked in the oath.

A person is asked, for example, whether he is a subversive person.

This stems from the 1951 Act.

I’ll also hasten to add that this is a request for information.

This is not a — a particular requirement of future behavior.

The State does have a right to request this information.

It is true that under Section 12 of the 1951 Act, the State may, in the future, request more information.

Now, I come to the key part of the 1951 Act, which are the definitional sections.

I think the first thing that is apparent when we consider the definitional sections is the fact that each definition must perform a double duty.

On the one hand, it defines a subversive organization, membership of which maybe a crime.

And on the other hand, it defines a subversive organization membership in which it cause one to lose his public employment.

Now, of course, it’s actually a mandate that criminal statutes are strictly construed, although the criminal portions of the statutes are not before the Court.

We say that these strict constructions, since there’s only one definition of subversive organization, since there’s only one definition of subversive person, since there’s only one definition of foreign subversive organization, we say that this strict criminal construction benefits those who come under the loyalty portion of the Act.

The strict construction is, of course, buttress by Section 19 which I read to the Court earlier, the mandate by the legislature that the Act be strictly construed.

What is a subversive organization under the Act?

We did not claim if these terms are self-defining, since they are defined in the Act.

This is one of the difficult areas of this case but I think that it is better to discuss it.

I will paraphrase the definition of “subversive organization” rather than read the expressed statutory definition.

Subversive organization is any organization, purpose of which is to, to do what?

To engage in a type of activities or to advocate, abet or advise a type of activities.

What type of activities?

Activities intended to assist in the overthrow, distraction or alteration.

The constitutional form of Government of the United States, of the State of Washington or of any political subdivision of either of them.

Now, the definition of subversive person is a little more involved.

Who’s a subversive person?

According to the statute, any person who aids in the commission or advocates, abets, advises or teaches by any means, any person to aid in the commission.

Commission of what?

Any act intended to assist in the overthrow, distraction or alteration.

Herbert H. Fuller:

Alteration of what?

Answer the constitutional form of Government of the United States or of the State of Washington or any political subdivision or either of them.

How?

By revolution, force or violence.

In addition, according to our statute, one is defined for purposes of the Act as a subversive person who with knowledge that the organization is an organization as defined on the section relating to foreign subversive organization, as relating to a subversive organization becomes or remains a member of such an organization.

Perhaps the most controversial is the definition of “foreign subversive organization”.

This is quite similar to subversive organization except that it’s further defined as an organization directed, dominated or controlled directly or indirectly by a foreign government.

Further, although the Section does speak in terms of overthrow, distraction or alteration, we’ve got to face the fact that it does not have the qualifying words by revolution, force or violence.

Now, we interpret this to, nevertheless, mean by revolution, force or violence.

And by revolution, we’re not talking about a peaceful revolution such as the industrial revolution.

We understand revolution to be a popular armed insurrection in the sense in which it’s popularly used.

Where do we base this on?

We based it on the fact that, on the one hand, it is a foreign organization.

In other words, being a foreign organization, it maybe less likely to rely upon normal democratic processes.

It may be more likely to rely upon an army which maybe the fist or the spirit of the foreign organization.

When the foreign niche of the organization and the fact that it may be relying upon a foreign army is combined with the words “overthrow, distraction or alteration”, we feel that it is clear enough that this means by revolution, force or violence.

Now, this Court has often held that if will uphold the statute if it can be given a constitutional construction.

This portion was given a constitutional construction, we submit, by the State of Maryland with the Ober Act, which as far as the definitional provisions are concerned, are identical to those in this case.

In the case of Shub against Simpson, Maryland court held that the purpose of the law referring to the Ober Act, was to prevent infiltration in our State, referring to the State of Maryland, county or municipal government by persons who are engaged in one way or another, in the attempt to overthrow the Government by force or violence.

Now, when the Gerende case came before this Court, Attorney General Hammond, I believe it was, gave the Act such an interpretation and seem to require change by violent means.

We say if it was done in the State of Maryland, it could be done on the State of Washington.

Again, our interpretation is buttressed by Section 19 of the Act asking that it be given a constitutional interpretation.

Now, my final point is this, with regard to the 1931 Act, it maybe true that as the (Inaudible) said, most questions eventually come before this Court.

This is also applicable to the 1955 Act.

But that does not mean that legal questions are involved, we submit that the real questions involved are not so much constitutional questions as there are questions of wisdom.

And we say that the solution for the appellants is with the Washington State Legislature, just as a solution for those who’ve just like Section 9 (h) of the Taft-Hartley Act, was with the Congress of the United States.

We say that the Legislature in the State of Washington is the proper area in which the appellants should seek their remedy.

Thank you.

Earl Warren:

Mr. — who’s going to pose?

Arval A. Morris:

Mr. Morris.

Earl Warren:

Mr. Morris.

Arval A. Morris:

Yes, sir.

Earl Warren:

Very well.

Arval A. Morris:

Thank you, Your Honor.

The State has argued several points.

I should like to address myself to one or two.

The first, as the State correctly argues, the subversive person section of the disclaimer oath does not originate in the 1955 Legislation but it originates in the 1951 Legislation.

I have it before me.

It states, “Every person who shall be in the employ of the State of Washington shall be required to make a written statement subject to the penalties of perjury that he or she is not a subversive person.”

Then it goes on to state, “Any such person failing or refusing to execute such a statement or who admits he has a subversive person, as defined in this Act, shall immediately be discharged.”

It does not afford the opportunity of a hearing.

This is further corroborated by the agreed fact on page 169 of the record where the — the counsels have agreed that execution of the required oaths on Forms A and B, described in the paragraph immediately above as “Oath Form A”, is made by statute and action of the defendant regents a condition precedent to any and all employment at the University of Washington.

That means that if a tenure professor should ask for a hearing, he should be granted a hearing.

The only question is who is — did he signed the oath?

If he failed to sign and if this is, as stated here as it is, an absolute requirement work — employment, then it is clear that it’s a sham hearing.

There simply is no hearing for the tenured professor.

There are —

Potter Stewart:

At what stage is this oath required to be signed as you understand it?

Before a person is employed or on his application or what?

Arval A. Morris:

(Voice Overlap) —

Potter Stewart:

As I understand it, nobody signed yet.

You just —

Arval A. Morris:

Well, what happened, Your Honor, is that the statute was passed in 1955.

Potter Stewart:

Yes.

Arval A. Morris:

It was immediately enjoined by the —

Potter Stewart:

Yes.

Arval A. Morris:

— lower court in the State of Washington.

That was appealed to the Washington State Supreme Court that reversed but they maintained the injunction pending appeal to this Court.

This Court heard argument, had briefs and then sent back the case for decision on the hearing question.

The lower court — pardon me, the State Supreme Court of the State of Washington wrote a very broad and discursive opinion in which the Section 19 was argued and what have you — and that the lower — the State Supreme Court refuse to take that into account.

Arval A. Morris:

And then they came back here —

Earl Warren:

Would you speak a little louder please?

Arval A. Morris:

Yes, sir.

The — the net result is that this oath and the statute have been enjoined for the last nine years.

Consequently, there would be a low level enforcement.

Consequently, what would necessarily in suit except for the time when the injunction in Nostrand against Little was dissolved.

Now, that point, then a new demand was made on all faculty on May 28th, 1962, that they execute Oath Form A —

Potter Stewart:

All present members of the faculty?

Arval A. Morris:

Yes.

Potter Stewart:

With or without tenure?

Arval A. Morris:

Yes.

Potter Stewart:

Were asked to sign?

Arval A. Morris:

Yes.

At page 304 in the record —

Potter Stewart:

It’s — it’s a one shot thing, you sign it once under the provisions of the (Voice Overlap) —

Arval A. Morris:

No, the 1931 oath is an annual oath.

Potter Stewart:

Annual oath.

Arval A. Morris:

Yes.

Potter Stewart:

That’s a promissory one.

Arval A. Morris:

Yes.

This is an annual.

Potter Stewart:

The — the other two are just one — one shot.

Arval A. Morris:

Well, the — the oath itself is a one shot arrangement as far as I can tell.

Yes, sir.

Now — but —

Mr. Morris —

Arval A. Morris:

Yes.

What questions are being presented now?

Arval A. Morris:

Well, the question I’d like to speak to is —

Now — let me answer my question — ask my question to you.

What question was being presented now in this appeal that were not raised in the, what I call, the second Nostrand case which we dismissed for lack of a substantial federal question?

Arval A. Morris:

Well, non-tenured member of the faculty before this Court —

Is that all?

That — is that the only difference?

Arval A. Morris:

Aliens are also before this Court quite contrary what the State says.

On page 304, there’s an actual demand that alien, Professor Didrickson signed the oath.

Well, is it — is it fair to say that the substantive constitutional questions which are tendering here, all the exceptions that you indicated as to non-tenure employees and aliens that the question is — were before us then or the one that you are tendering now?

Arval A. Morris:

The State Supreme Court has passed on all of the substantive First Amendment issues that we raised would depend and it — including other issues as well, the bill of attainder issue and self-incrimination issue.

No, I’m talking about the questions that you put to this Court, not to the State Supreme Court, the questions that you put to this Court in the second Nostrand case, if I may use that term, which we dismissed for lack of a substantial federal question.

Arval A. Morris:

I wasn’t here in that case.

I believe that this Court, in that second case, had before it the argument of bill of attainder, the argument that underneath the balancing test, vagueness was not raised, preemption was raised.

Byron R. White:

(Inaudible)

Arval A. Morris:

Was — was not raised in the second — Nostrand against Little —

Byron R. White:

(Voice Overlap) —

Arval A. Morris:

— case on appeal here.

Byron R. White:

Alright.

Arval A. Morris:

It was raised in the lower court.

Byron R. White:

(Inaudible)

Arval A. Morris:

The vagueness question had been argued in the State Supreme Court but I don’t believe counsel pressed that here.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Yes, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

It depends whether it’s true, if it’s true faith and allegiance to a particular Government of the United States, I would —

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Oh, well, that’s an excellent oath and I would assume that no member of the faculty would be adverse to swearing that, the Constitution of the United States.

Arthur J. Goldberg:

(Inaudible)

Arval A. Morris:

Well, true faith and allegiance to the Constitution of United States would include the First Amendment when — I think that would be.

Arthur J. Goldberg:

Could you go back to (Inaudible)

Arval A. Morris:

Yes, Your Honor.

The point I’d like to address myself to now is who has to sign the 1931 oath?

Arval A. Morris:

The section of the statute is very clear and by definition it says, “Every professor, instructor or teacher must execute the oath.”

It uses the term “professor”.

Secondly, on page 303 and 304, there was an actual demand and refusal made upon Professor Didrickson, an alien, a citizen of Norway.

The — the President of the University of Washington, his testimony was introduced by the State, has stated that the demand of May 28th was a demand that all members of the faculty execute the oath.

And what actually occurred was that we have a new president as of 1958.

I take it that he made the decision not to continue the old policy but this was unknown to Professor Aldenderfer.

William J. Brennan, Jr.:

Does the president have discretion?

Arval A. Morris:

No, Your Honor, there is no discretion here.

It’s a statutory oath prescribed by the legislature that the second section says that it will apply to every professor, every instructor.

And as I understand it, the new president, President (Inaudible) came in 1958.

He simply stated that everyone has to sign.

I don’t know whether he planned to continue the old practice but it would appear to me that it would be misfeasance of office to have him scratching out the statutory wording of a statute of the State of Washington.