Connell v. Higginbotham

PETITIONER: James Higginbotham
RESPONDENT: Stella Connell
LOCATION: United States District Court for the Middle District of Florida

DOCKET NO.: 79
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 403 US 207 (1971)
ARGUED: Nov 19, 1970
DECIDED: Jun 07, 1971

ADVOCATES:
Sanford Jay Rosen - For the appellant
Stephen Marc Slepin - For the appellees

Facts of the case

Stella Connell applied for a teaching position with the Orange County school system, where James Higginbotham was the superintendent of the Board of Public Instruction. Connell was employed as a substitute teacher, and later dismissed from her position for refusing to sign the loyalty oath required of all Florida public employees. The oath stated that the employees “will support the Constitution of the United States and of the State of Florida” and “do not believe in the overthrow of the government of the United States or of the State of Florida by force or violence.” The district court held that the provision of the oath that employees will support the Constitution is valid, but the provision not to overthrow the government is unconstitutional. Connell appealed directly to the Supreme Court. 

Question

Is the requirement of a pledge to support the Constitution of the United States and the state invalid? 

Does a school board’s decision to dismiss an employee based on the refusal to sign the loyalty oath denying belief in the overthrow of the United States government or that of the state violate the Due Process Clause in the Fourteenth Amendment? 

Media for Connell v. Higginbotham

Audio Transcription for Oral Argument - November 19, 1970 in Connell v. Higginbotham

Warren E. Burger:

79, Connell against Higginbotham.

If counsel in number 88, either Mr. Roundtree or Mr. Williams are present, I hope you have been made aware that we'll not reach your case today.

Mr. Rosen, you may proceed whenever you're ready.

Sanford Jay Rosen:

Thank you, Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

I'm representing a woman who was ousted from her job as a school teacher in Orange County, Florida because she refused to take a loyalty oath.

Incredibly, the oath that was first tendered to -- to the appellant was the duplicate word for word, but the oath that was voided by this Court almost 10 years ago in the Cramp case.

Indeed both this case and the Cramp case arose in Orange County and individuals comprise in that county's Board of Public Instruction were defendants in both cases.

The Court will forgive counsel, he hopes if he confesses to a sense of déjà vu.

The feeling of having been here before is enhanced by the fact that just three years ago, counsel stood at the bar of the Court to plead the Whitehill case on behalf of another teacher who chaffed at the loyalty of.

From Cramp through Whitehill and James versus Gilmore, on seven occasions in the last decade, on relatively narrow grounds, this Court has invalidated all state negative loyalty oaths for public employees to come before it.

The affirmative or positive oaths have been left standing.

Now, we've come full circle, for we are back again to consider the oath and law that was reviewed by the Court in Cramp, the first case in this line.

As enacted, the Florida loyalty statute contained five operative phrases, test oaths, we submit each separately or all taken together.

In Cramp, this Court declared one of these phrases at least invalid.

In the present case, the Court below struck down two more.

Over Judge Simpson dissent however, it declared severable and then validated the remaining two phrases.

On the surface, one is negative and the other is affirmative.

Now, all teachers and all other employees are officials of the State of Florida must now swear an oath in the following form.

“That I will support the Constitution of the United States and of the State of Florida, and that I do not believe in the overthrow of the Government to the United States or of the State of Florida by force or violence.”

Appellant respectfully submits --

Warren E. Burger:

Would you have objected if it stopped after the first section?

Sanford Jay Rosen:

Your Honor, we would object if the Florida oath were to stop after the first section.

Potter Stewart:

We have to overrule the decision in this -- very recent decision of this Court to in order to sustain your objection?

Sanford Jay Rosen:

Justice Stewart, appellant requests that you consider the recent decisions of this Court which were not had after a full argument and briefing but only on summary affirmance of decisions below.

Potter Stewart:

But it wasn't affirmance on the merits?

Sanford Jay Rosen:

An affirmance of the merits in three cases in the --

Potter Stewart:

Right.

Sanford Jay Rosen:

-- last three years; Knight, Olson and Hosack.

Potter Stewart:

Right.