Cole v. Richardson

RESPONDENT: Richardson
LOCATION: Odessa Junior College

DOCKET NO.: 70-14
DECIDED BY: Burger Court (1972-1975)

CITATION: 405 US 676 (1972)
ARGUED: Nov 16, 1971
DECIDED: Apr 18, 1972

Stephen H. Oleskey - for appellee, pro hac vice, by special leave of Court
Walter H. Mayo, III - for appellants

Facts of the case


Media for Cole v. Richardson

Audio Transcription for Oral Argument - November 16, 1971 in Cole v. Richardson

Warren E. Burger:

We will hear arguments next in Cole against Richardson.

Mr. Mayo, you may proceed whenever you are ready.

Walter H. Mayo, III:

Mr. Chief Justice and may it please the Court.

This is a direct appeal from the decision of a three-judge District Court for the District of Massachusetts, declaring invalid on First and Fourteenth Amendment grounds, the oath required of all state, county and municipal employees in the Commonwealth of Massachusetts, but the facts are not in dispute.

Very briefly they are that the plaintiff was hired as a research sociologist at the Boston State Hospital.

She was on two occasions asked to take the oath required by the statute, and on both occasions she refused.

There upon, she was advised that she could no longer continue her employment at the hospital and the compensation could no longer be paid to her.

Several months later, plaintiff commenced her civil action in the District Court in which she sought a declaration as to the oath’s constitutionality and damages by way of back pay and for breach of contract.

The three-judge court received the stipulation of facts and her arguments of counsel and there upon entered a judgment and injunction declaring that the oath did violate the provisions of the First Amendment of the constitution, but they denied the plaintiff's claim for damages and back pay.

Both the plaintiffs and the defendants appealed to this Court in the 1969 term, and in response to the defendant’s appeal, the plaintiff maintains that that appeal was moot because of a particular job slot for which she had been hired at the Boston State Hospital had been filled subsequent to the District Court’s decision.

The defendants resisted this suggestion of mootness by filing an affidavit of the hospital superintendent, but nevertheless this Court vacated the judgment of the District Court and remanded to that court with directions to determine the question of mootness.

At the hearing on remand before the District Court, the three-judge court received an additional stipulation of facts, and heard oral evidence on the question of damages which it had advised that it would reconsider and at that hearing, the plaintiff retracted her suggestion of mootness which had been made earlier to this Court on the preceding appeal.

There upon, the three-judge court reinstated its judgment and injunction continuing to deny the plaintiff, a claim for damages and back pay.

Now, this time only, the defendant’s appeal, this Court has noted probable jurisdiction and we are therefore here on the narrow issue of whether or not the Commonwealth of Massachusetts may require all of its public employees an oath that they swear or affirm that they will uphold and defend the constitution of United States and of the Commonwealth of Massachusetts, and further they will oppose the overthrow of the government of the United States or of the Commonwealth by force, violence or any illegal or unconstitutional method.

Harry A. Blackmun:

Does the back pay issue filed to the case here?

Walter H. Mayo, III:

No, Mr. Justice.

Yes, it is Mr. Justice Blackmun, it is no longer in the case.

Harry A. Blackmun:

How do you characterize the District Court’s opinion here?

Is it based on the First Amendment grounds or on the Fifth and Fourteenth Amendment grounds?

Walter H. Mayo, III:

Well, the District Court did not mentioned the Fourteenth Amendment in its original opinion on the constitutionality issue and based it entirely on the First Amendment and I believe by virtue of the fact that the First Amendment is applicable to the states or the Fourteenth, we must also characterize it as being a First and Fourteenth Amendment question.

Potter Stewart:

You said that this is required to all employees.

The fact is that it is not required of all state employees because physicians or nurses in a hospital or other health care institutions, are not required to take such an oath if there (Inaudible).

Walter H. Mayo, III:

Yes, excuse me Mr. Justice Stewart, that is correct provision, exception is written in the statute.

Potter Stewart:

Yes, even if an Equal Protection argument, based on that exception?

Walter H. Mayo, III:

No, no equal protection argument.

Potter Stewart:

You do not?

Walter H. Mayo, III:


Plaintiff’s challenge in the District Court was first to the entire oath and the District Court considered this challenge and found plaintiff’s analysis of the language of the first portion of the oath that one will uphold and defend the constitution of the United States and of the Commonwealth to be esoteric.

It said that they could not adopt that argument because any argument after that portion of the oath, had been foreclosed by this Court for carrying an affirmance in Knight versus Board of Regents.

As to the second portion of the oath, the District Court agreed to plaintiff in one respect.