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? 

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.

Warren E. Burger:

But you think it is unconstitutional for this Court to require as we did this morning, seven or eight men to take an oath that they will support and defend the Constitution?

Sanford Jay Rosen:

Your Honor, I’m not here to press the question of whether an Attorney maybe compelled to take an oath to support the Constitution of the United States.

I understand that question maybe before the Court right now in three cases.

However, I think the case of an Attorney maybe distinguishable, maybe different, really different in the case of a school teacher, a garbage collector, a subway conductor, a — well, any number of potential public employees of the State of Florida or for that matter of any other state.

We are submitting that indiscriminate test oath of all public employees is a test oath, an unconstitutional oath for various reasons.

We could also suggest grounds upon which this particular test oath could be voided without the Courts reaching that question.

However, we would respectfully submit that it would be appropriate in this case for that question to be reached.

But taking the case of the Attorney, Mr. Chief Justice, one could suggest that an Attorney coming to the bar to operate within an system of law under a Constitution might well, at very least as a symbolic act of fidelity take an oath support the Constitution.

Whether or not such an Attorney would ever be prosecuted for perjury of course is questionable in my mind, but if cause came on subsequent occasion to think that the oath were taking falsely, we’re not quite even certain what that mean of course, but we do believe that the case of an Attorney would be somewhat different from that of just an ordinary public employee.

In fact Your Honor, we make five arguments as to the oaths in this case.

None of which do turn on particular phrase at issue or whether it is cast in negative or affirmative terms.

We propose in this argument to take the high ground and hope to persuade the Court that the time has come at last to address underlying question of whether indiscriminate test oaths, regardless of how they maybe cast, invariably offend the Constitution.

Now, we would make five points in this case, two of them address the indiscriminate test oaths or all indiscriminate test oaths.

The first is that such test oaths violate the First and Fifth Amendments to the United States Constitution.

The second is by operating automatically in an area abutting essential First Amendment Rights, all such test oaths violate the Due Process Clause of the Fourteenth Amendment in this case or of to federal oath, the Fifth Amendment for lack of a hearing.

The other three arguments we would make pertain more specifically to the oaths in this case.

Warren E. Burger:

I’m not sure I follow you on —

Sanford Jay Rosen:

On the hearing, Your Honor?

Warren E. Burger:

— for lack of a hearing, hearing on what and at what stage?

Sanford Jay Rosen:

Alright.

The hearing might be on two points.

It’s our submission that all test oaths had within them an element to vagueness and over breath.

None of them is quite clear.

A layman taking the oath and who takes oath seriously might well wonder what the oath means.

There’s no provision in the Florida law nor in most laws for any clarification of the oath and the case before the Court is a particularly interesting one in this regard because as the brief demonstrates and the record demonstrates, this Court had in fact struck down one provision in the oath that was first submitted to our client, to the appellant.

Now it just so happened, the appellant went to an Attorney and was informed that the oath that she was given was in firm.

And then the public — the school board attempted to cure that oath and we got into a litigation posture.

In the absence of a hearing opportunity, that clarification in this case would never have occurred or might never have occurred.

In addition, if the oath is it all vague the clarification possibility would never occur, if the person has conscientious reasons to believe that the oath is unclear.

Secondly, a large number of people have conscientious objections to the taking of oaths.

Sanford Jay Rosen:

I’m not merely talking about whether they can swear or affirm, but they conscientiously scruple against taking oaths.

Members of the Society of Friends for example, might well not wish to take any oath, members of the Seventh Day Adventist sect.

for example, might well not wish to take any oath as this Court recognized in Torcaso I think.

So, the indiscriminate across the board automatically operating test oath as in this case provides no opportunity for a person who may have a good constitutional exception to the oath, at least in her case or his in case to assert that exception or it provides absolutely no opportunity for that person to explain his or her reasons for not taking the oath and to provide if that’s necessary the kind of a record to demonstrate whether in fact they are a risk to the Government in an employment capacity.

Now, as I suggested, we will make three other arguments and have made them in our brief, addressed to the oaths at issue in this particular case.

The first argument will be that it is illuminated by the Florida Supreme Court on remanding the Cramp case, each of the phrases, each of oaths in this case is unconstitutionally broad in derogation of the First Amendment.

If not unconstitutionally broad, our second specific argument would be that each again is illuminated or perhaps obfuscated is the proper word by the Florida Supreme Court is unduly vague in violation of the Fourteenth and First Amendments.

And finally under the Florida tests of severability, given the gloss put upon the oath by the Florida Supreme Court in Cramp on remand, any surviving provisions of the statute must now fall.

Now, if Your Honors will, I’ll take up each of the points in order.

The first point is that test oaths generally are unconstitutional.

Hugo L. Black:

May I ask if you have filed a brief in addition to others filed with the jurisdictional statement?

Sanford Jay Rosen:

Yes, Your Honor we did.

It was filed.

If Your Honor desires a copy, I do have an extra here.

As I was stating, test oaths a fortiori invade First Amendment provinces.

Even a simple oath to support the Constitution is encroaching upon a person’s right to believe or not to believe in the Constitution.

Thurgood Marshall:

Do you think that the First Amendment, amended Article VI which requires all state judicial officers, legislators and executive officers to support the Constitution of the United States?

Sanford Jay Rosen:

Mr. Justice Marshall, I — that’s an intriguing question one that had not occurred to me before and I suggest that the answer would be —

Thurgood Marshall:

Well, I would suggest that your brush is too broad.

Sanford Jay Rosen:

Now, I agree with you and if the —

Thurgood Marshall:

You are saying the statute is too broad, I think your arguments are little broad?

Sanford Jay Rosen:

I was going to narrow the purview of my argument by suggesting what I meant by an indiscriminant test oath.

I do not think that the First Amendment has amended Article VI.

Thurgood Marshall:

Well, I’d be [Voice Overlap]

Sanford Jay Rosen:

And certainly this Court in dictum, in Bond versus Floyd recognized that the State might well require of a state legislator, an oath that it could not require of a private citizen.

Now, it’s important that Chief Justice Warren in speaking to the oath and Bond versus Floyd’s used almost precisely those words.

It may require an oath of a legislature that it could not require of a private citizen.

Our submission is the person’s —

Byron R. White:

Did we make to the one and not to other?

Sanford Jay Rosen:

No.

Sanford Jay Rosen:

It might unconstitutionally invade the First Amendment Rights of one rather the other, even a simply oath to affirm the Constitution.

Byron R. White:

[Inaudible]

Sanford Jay Rosen:

I beg your pardon?

We do not abandon our vagueness argument as to this oath.

If the Court chooses to —

Byron R. White:

It was frankly that you were saying the vagueness of this oath?

Sanford Jay Rosen:

Oh!

I think this oath would be vague to anyone who took it, yes.

Byron R. White:

Supporting constitution?

Sanford Jay Rosen:

Well, if this oath is illuminated by a gloss provided by the Supreme Court of Florida which is controlling on the meaning of the oath now.

In Cramp on remand, the Supreme Court of Florida said the obvious legislative purpose in enacting the subject statute was to prevent the election or employment of public officials and employees who are knowingly disloyal to the Government of the United States or to the State of Florida and who subscribed to the doctrine of accomplishing a change in Government by employment to force or violence.

We suggest the two words in that clause are unclear, unconstitutionally unclear.

We do not know what disloyal means and we do not know what subscribe means as used by the highest court of the State of Florida.

I took the occasion to look up the words subscribe again and I notice that the first three meanings have to do with signing a writing document or undertaking.

I’m not sure that that what’s the highest court of Florida meant when it used the word subscribe.

I’m not sure how far they meant to go when they use the word subscribing.

Further, the word disloyal or disloyalty does confound me, that’s as to this oath.

Now, that gloss where not present, if the Florida law merely said that all persons excepting office under the laws of Florida or of any political subdivision must take an oath to support and uphold or to — well, support and uphold will do, the constitutions of the United States and of the State of Florida, then our position Mr. Justice Marshall is that oath would be unconstitutional as to mere public employees not in position of sensitivity.

Thurgood Marshall:

Why?

Sanford Jay Rosen:

If I may suggest first that, it would be constitutional as the legislators, why?

Because —

Thurgood Marshall:

What about the executive officers?

Sanford Jay Rosen:

It would be constitutional as to executive officers in a sensitive post as well.

Thurgood Marshall:

Why?

Sanford Jay Rosen:

Because —

Thurgood Marshall:

Because of Article VI?

Sanford Jay Rosen:

I beg your pardon.

Thurgood Marshall:

Because of Article VI?

Sanford Jay Rosen:

Because of Article VI and even in the absence of Article VI, it might still stand.

Warren E. Burger:

What about policeman?

Sanford Jay Rosen:

Policeman provide a tougher case.

Policeman would be closer to lawyers and if indeed, the oath would be supportable for lawyers, I imagine they might — it might be for policeman.

Warren E. Burger:

How about civics teachers?

Sanford Jay Rosen:

I think not.

I think not, the oath and possibly not even a policeman.

The point being that the main justification for the oath aside from Article VI —

Thurgood Marshall:

Suppose this petitioner in this case, would you say did necessarily understand the oath, right?

Sanford Jay Rosen:

Yes sir.

Thurgood Marshall:

Became a legislator, you couldn’t give him oath, could you or could you?

Sanford Jay Rosen:

Do you mean the precise oath that was given to her for the particular oath?

Thurgood Marshall:

Yes.

Sanford Jay Rosen:

Well, no.

If she remained true to her cause, she could not become a legislator, but if the oath were simple one —

Thurgood Marshall:

Well, could she get any relief in this Court?

Sanford Jay Rosen:

If she became a legislator?

Thurgood Marshall:

No!

Sanford Jay Rosen:

Under this law?

Thurgood Marshall:

And she said that I don’t have to take the oath?

Sanford Jay Rosen:

This particular oath?

Thurgood Marshall:

The oath to support the Constitution of the United States?

Sanford Jay Rosen:

You mean if that were all there was?

Thurgood Marshall:

Yes.

Sanford Jay Rosen:

No, she could not get relief from this Court.

Thurgood Marshall:

But what’s the difference between her as a legislator and her as a teacher, the same oath?

Sanford Jay Rosen:

What is the difference?

Thurgood Marshall:

The understanding of the oath form?

Sanford Jay Rosen:

Well, on that point the vagueness, we’re not pressing that particular point to vagueness.

The point of vagueness we press is the Supreme Court of Florida’s gloss on this particular affirmative oath when you’re dealing with the affirmative oath.

But as to her, we would still suggest that the affirmative oath put to a school teacher or a sanitation employee or someone in that category is an undue invasion of their First Amendment Rights.

There is no good reason why the Government should require — well, to start with the sanitation workers to take an oath to uphold the Constitution of the United States.

Sanford Jay Rosen:

We can see some reason why the Government might require civics teacher Mr. Chief Justice to stand up and say that she will support the Constitution of the United States.

However, we do not believe if the Government can meet the burden of subordinating interest and substantial interest has been set recently by this Court in Shapiro versus Thompson which must be met before you can invade First Amendment Rights.

Potter Stewart:

I didn’t quite understand how you distinguished public school teachers from lawyers for admission to practice?

Sanford Jay Rosen:

Well, there are two distinctions I would think Mr. Justice Stewart.

Potter Stewart:

Because you do concede that lawyers maybe required to take such an oath, do you not?

Sanford Jay Rosen:

Well, I concede that I have more trouble with the case of lawyers taking the oath —

Potter Stewart:

And we have a rule of this Court that requires —

Sanford Jay Rosen:

Certainly and the rules of this Court.

Potter Stewart:

Everybody takes such an oath.

Warren E. Burger:

Yes, and if anyone declined to take it, he would not be admitted?

Sanford Jay Rosen:

That’s right.

Now, its interesting that the rule of this Court until recently was a rule that had to be executed in person.

That is to say, the applicant for admission to the bar had to present himself before the bar of this Court and personally take the oath swearing or affirm it.

Warren E. Burger:

Do you think they make difference between doing that and signing it in writing?

Sanford Jay Rosen:

Originally, I believe there was a difference.

I think the difference consists in two parts, well, one major part.

It seems to me the oath to affirm the Constitution is basically a symbolic oath.

It’s a public gesture of fidelity to the Constitution to the basic system of Government and of law, and it’s a useful symbol and tradition to have the President of the United States, for example, on the occasion of his inauguration or the justices of the Supreme Court or other high Government officers taking oath of fidelity to the Constitutions to the basic document.

I think it’s very useful.

I don’t know —

John M. Harlan II:

You think it’s just symbol?

Sanford Jay Rosen:

I beg your pardon?

John M. Harlan II:

You think it’s just symbol, ceremony of —

Sanford Jay Rosen:

I assume that each man who takes the oath for high Government office takes it conscientiously and believes he understands what the oath means and he intends to uphold and support the Constitution of the United States, but in terms of the basic values of the society, yes, I think it is basically symbolic.

I could hardly imagine that it would be enforced through a perjury prosecution for example and I do not see the symbolism of having a sanitation worker or even a teacher sign a piece of paper saying that she will or he will as the cost of the privilege of taking of our garbage or teaching our children uphold —

Warren E. Burger:

You seem to put those two together all the time.

You —

Sanford Jay Rosen:

Well, [Laughter] I don’t mean to in any —

Warren E. Burger:

Is that intentionally?

Sanford Jay Rosen:

Pejorative fashion.

Sanford Jay Rosen:

I — of course I choose the sanitation worker as which strikes me to be the most ludicrous example of the lack of relationship between a function for such an oath and the oath —

Warren E. Burger:

But the case are now before us is a school teacher.

Sanford Jay Rosen:

Is a school teacher.

Warren E. Burger:

So we don’t have to worry too much about the garbage collector, do we?

Sanford Jay Rosen:

In this case, this case you can not even worry about the affirmative oath question but of course in Cole versus Richardson which the Court remanded last year, the question has been refiled in the — or Cole versus Richardson has been refiled before the Court and the question is being pressed upon the Court on a numerable occasions.

In this case, we’re dealing with school teacher.

In Cole as I recall, we were not — you were not dealing with the school teacher.

The woman was a laboratory technician which if the area of education is one that seems to give rise to a reason for sensitivity and for the symbolism of the oath, well certainly a lab technician in a biomedical facility may move away from the school teacher area toward the sanitation worker area.

But if you move into the school teacher area where surely the reasons for giving the oath or for requiring the oath may seem greater, you also find Your Honors, that the reasons for not requiring the oath are greater.

And numerable decisions of this Court have recognized the centrality of academic freedom to the First Amendment, indeed to all essential democratic rights in our society.

Warren E. Burger:

You think — you think that school teachers are entitled to more freedom in that respect than the Supreme Court justices and lawyers to practice before the Court?

Sanford Jay Rosen:

Yes, in that respect.

I am both a school teacher and a lawyer and I think that if I have to take the oath as a school teacher, it would bother me a great deal more than I have to take the oath as a lawyer.

I have taken the oath as a lawyer of course, but yes, school teachers according to the decisions of this Court Mr. Chief Justice are entitled to what appears at least on my reading of the recent decisions to be a higher protection of the First Amendment than most of the folk in our society because of the essentiality of academic freedom, because of the very, very tenuous and subtle and well, very fragile nature of the academic setting.

Our second point —

Harry A. Blackmun:

Mr. Rosen, could I ask you, does the record disclose the grade at which your client taught?

Sanford Jay Rosen:

She was either in the first or to the third grade Mr. Justice Blackmun.

Harry A. Blackmun:

You draw any distinction between teaching in the elementary levels as compared with teaching in law school for instance, so far as the oath is concerned?

Sanford Jay Rosen:

No, we do not.

I can see that that such distinctions can be made, but we do not believe they make a difference.

The basic function of the oath is served in neither occasions.

To the extent that the State’s interest maybe in avoiding indoctrination of either third graders or law school students in subversive concepts or subversive ideas whatever they maybe, I would submit the State has other means by which it can accomplish that end without requiring teachers to go to de novo in some cases, ends of having to subscribe a test oath.

The second point that we make in terms of the broad-based unconstitutionality of the indiscriminate test oath.

The oath given to all people who somehow come within the State’s power either by way of employee or one who requests a benefit is that because of the automatic nature of the disability, the First Amendment Rights are even more greatly invaded or the danger to the First Amendment rights is even greater.

Therefore, at the very least if such oaths or such inquiry can be made, there must be provision for hearing as there was indeed in the New York cases, both in Adler and in Keyishian.

Some provision for a hearing at least whereby the oath or the inquiry can be clarified and the applicant or the one who is being asked to subscribe the oath may in fact state her reservations.

Now, the specific objections to the oath and the statute in this case, the oath of Florida and the statute of Florida really illuminate, we feel the defects of all test oaths.

In the first instant under the gloss provided by the Florida Supreme Court, each of the oaths in fact unduly invades First Amendment interests.

Byron R. White:

Would you say concept of academic freedom go so far or maybe not so far as to say that a school or a university could not hire a professor who was advising students to use say violence to achieve their goals in the university?

Sanford Jay Rosen:

No, I would not say that Mr. Justice White, but that is not the same thing as requiring all professors to take loyalty.

Byron R. White:

Yes, well we’ll get closer.

What if — could they ask him when he takes his job, wants the job — do you intend to advice students to use violence to achieve their ends in the university?

Sanford Jay Rosen:

Are they going to ask all teachers that?

Byron R. White:

Yes.

Sanford Jay Rosen:

That’s the functional equivalent of a loyalty oath at that point.

I think it offends both the privilege against self-incrimination and the First Amendment since it’s quite inchoate, quite vague at that point.

They are asking him about future intents and things like that.

Byron R. White:

So, you would say a fortiori, you couldn’t ask him, “Do you believe in the use of violence to achieve social ends?”

Sanford Jay Rosen:

A fortiori, you could not ask him that.

Byron R. White:

Alright.

Sanford Jay Rosen:

Because that is just a belief and numerable decisions of this Court have recognized it that you may not invade to protected province of a man —

Byron R. White:

Well, they may not leave or keep him out of his job for that, but I’m just wondering if you could ask him that?

Sanford Jay Rosen:

Well, you can always ask Mr. Justice White.

Byron R. White:

Well, I know but you’d say that you couldn’t — that if he refused to answer, you couldn’t fire him?

Sanford Jay Rosen:

That’s right.

Byron R. White:

And you would say that’s even — you would say its bad even if the State conceded if the — that if the answer is yes, they couldn’t fire him without answering some other questions, without asking him some other questions?

Sanford Jay Rosen:

Well, you’re trying to make the teacher’s situation look much closer to the bar situation, I take it.

Byron R. White:

Well, I don’t know whether — which way do you run that thing?

Sanford Jay Rosen:

Well, because of the fragility of academic freedom, I would think that you would have to put a greater protection around the teacher than around the lawyer, although the lawyer is entitled to a great deal of protection.

Thurgood Marshall:

Could you ask him, have you ever been convicted of a crime or felony?

Sanford Jay Rosen:

I believe he could.

Thurgood Marshall:

Could you ask him as to whether he ever been discharged from a teaching position?

Sanford Jay Rosen:

Yes.

Thurgood Marshall:

Could you ask him why?

Sanford Jay Rosen:

Yes.

Thurgood Marshall:

Well, how can you do that and not asking other questions?

Sanford Jay Rosen:

Because when you’re asking whether he’s ever been convicted of a felony in most instances, you’re dealing not with First Amendment activity.

If he has in fact been convicted of a felony, he is a felon.

Thurgood Marshall:

Well, he had been —

Sanford Jay Rosen:

That has no bearing on the First Amendment.

Thurgood Marshall:

Have you ever been convicted of burning your draft card?

Sanford Jay Rosen:

I have more trouble with that case.

Thurgood Marshall:

I should hope so. [Attempt to Laughter] I just have great difficulty equating academic freedom with First Amendment.

They are a little different.

Sanford Jay Rosen:

If anything, academic freedom maybe a bit bigger than the First Amendment for the rest of —

Thurgood Marshall:

Except it hadn’t been adopted yet?

Sanford Jay Rosen:

Well, [Laughter] except that the gloss put upon the First Amendment by this Court in Whitehill and Keyishian and other decisions has recognized the terribly critical First Amendment part of academic freedom.

My reading of those decisions was that academic freedom was entitled to a highest priority protection under the First Amendment.

And well, I see that my time is elapsing perhaps I — we will stand on our brief for the points in terms of the actual unconstitutionality of these specific provisions.

By suggesting in closing as — I did desire to quote something from Professor Emerson’s recent book on the system of the freedom of expression which very succinctly demonstrates, at least these words can, the unduly vague broad and due process violating character of all indiscriminate loyalty oaths.

But since I can’t find that particular piece of paper —

Warren E. Burger:

You can give us the citation, we’ll check out Professor Emerson —

Sanford Jay Rosen:

At page 207 and 208.

In close Your Honors, appellant respectfully request this Court to declare the Florida loyalty oath and statute, all of it unconstitutional and to use the occasion to pass upon the indiscriminate test oath as such.

Thank you Your Honors.

Warren E. Burger:

Thank you, Mr. Rosen.

Mr. Slepin, do I pronounce your name correctly?

Stephen Marc Slepin:

Yes sir, thank you sir.

May It please the Court.

In employing a perspective slightly different from the perspective in which the appellee’s brief was cast without abandoning any of the arguments in that brief, in the next few moments I just like to take account of appellant’s argument within the somewhat per se context of a three-fold argument if I may.

The position that the appellees going to advance to the Court this afternoon are briefly stated these.

First, we think that the court below was correct in assuming and we think to that it was on operative assumption that oaths per se, we’re not concerned for the moment with the content of the oath, are constitutionally legitimate running as they do, we think and as the Court pointed out through the very pith and marrow of the American experience.

Secondly, we think the Court was correct in advancing that assumption to a position that governmental employment as such maybe conditioned upon an oath under certain circumstances and we’ll deal again with the content of the oath in just a moment.

Secondly, we’re going to take the position that the Court was quite correct in upholding after certain judicial excisions, the instant oath which is now before this Court and in the context of that I’d like to deal with the due process arguments advanced by the appellant.

And then finally, I’d like to advance the argument that the court below was correct with respect to the doctrine of severalability in holding in effect that the doctrine is alive and is well, and then the case of Jackson and as well as in the Cramp case is alive, well and resident within this very chambers.

First of all, Your Honors, we’re going to be somewhat less categorical than the appellant.

We want to speak to this case before the bar at this point and we will paint with a brush less broad than a comet’s tail.

We want to take the position, Your Honors as this Court knows, that Article II, Section VII of the Constitution itself prescribes an oath and later, I want to point out that the oath which it does prescribe for the President of the United States is far broader, far vaguer if you will, far less specific than the oath with which were confronted in the instant case.

Article VI, Clause II of the Constitution requires that all executive, judicial and legislative officers of the United States and the several States must subscribe to an oath and as we noted in our brief, the first Congress in 1789 precisely prescribed an oath.

This morning, I stood before this Court and very proudly subscribed to an oath promulgated by this Court and imposed upon me by this Court pursuant to Rule V, an oath which I want to point out to the Court was a tri-part tied oath was far more expensive, if you will, far less specific than the oath attendant to the cause at bar at the present time.

Stephen Marc Slepin:

In the case of Bond v. Floyd, this Court held very categorically it seem to me if somewhat off handedly, “A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office.

We do not quarrel with the State’s contention that the oath provisions of the United States in Georgia Constitutions do not violate the First Amendment.”

And then finally, at page 247 of lawyers edition in Bond v. Floyd, “Of course a State may constitutionally require a note to support the Constitution from its legislators,” and then, as Mr. Rosen pointed out in the Hosack case, in the Knight case, and the Olson case affirmed by this Court, the so-called affirmative mode of the loyalty oath was exacted, it was sustained and this Court affirmed.

In Gilmore versus James, which was a case that had to do precisely with organizational membership and that particular oath or affidavit was struck down, nevertheless, the Court pointed out that the affirmative mode of an oath as such was hardly repugnant to the Constitution because the Constitution requires one in one place and prescribes it in another place.

And then lastly, in the case of Stewart versus Washington which again, is not on point because it dealt with subscription to Title V of the US Code was a far more involved case than the one at bar, nevertheless in dicta, Stewart versus Washington the, Court pointed out that the oath in the affirmative mode was part and parcel of our Constitution and our constitutional experience.

I suggest to the Court that the oath per se is constitutionally legitimate on at least two grounds.

Number one, the Constitution of the United States in two articles, admits of an oath and prescribes an oath.

And then secondly, this Court has held and I would cite the Court to the Mitchell case and I would cite the Court as well to Ex Parte Curtis that governmental employment maybe conditioned and maybe conditioned in such a way that the employee may claim an infringement of his First Amendment Rights, but that the Court itself will then determine not whether there has been an infringement because in the Mitchell case upholding the Hatch Act, the Court admitted an infringement of several provisions of the Constitution and rights derivative there from, but it will decide rather the permissibility or impermissibility of the extent of this alleged infringement.

Potter Stewart:

I’m a little curious about the facts of this case.

Stephen Marc Slepin:

Yes.

Potter Stewart:

I note that the first oath submitted to the petitioner was the one that had been very explicitly invalidated by this Court more than 10 years ago, more than almost 10 years before she was asked to take this oath.

Stephen Marc Slepin:

That’s correct.

Potter Stewart:

It is the practice — is it the practice for your clients to nonetheless to submit that oath and to have applicants signed it if they’re willing to do so even though this Court’s held is constitutionally invalid?

Stephen Marc Slepin:

It was unquestionably done in this case.

The error is unblinkable Your Honor.

I have no knowledge that it has been done elsewhere.

It seems to me that it’s a case of error, omission, oversight or delinquency and the case of Adams which is you know is to be before this Court and various portions of that record are included, was a case incidentally where some of the members of the University of Florida staff were employed for some substantial period of time before they were ever presented with an oath which is very much like Knight versus the Board of Regents pointed out if the oath was adopted 1934 and I think the Knight case is brought in 1967, several years after some members of that faculty of the Delphi had been employed not presented with the oath.

It was a delinquency in this case Your Honor and the Court moved very quickly to remedy that delinquency and to point out as did the Board of Public Education in Orange County after it was notified by counsel from Mrs. Kennel that that portion of the oath which this Court had dealt with in the Cramp case had no proper place being submitted to Mrs. Kennel and she was under no legal obligation to subscribe.

Potter Stewart:

They haven’t tell and although they are parties in the Cramp case, they hadn’t received the word of our decision?

Stephen Marc Slepin:

Your Honor, the ways of a Government executive —

Potter Stewart:

These are very parties in the case, aren’t they?

Stephen Marc Slepin:

They were indeed parties to the case Your Honor.

Although, this was not the same school board and not the same Superintendent as far as I know.

Potter Stewart:

Some other parties, overlapping party.

Stephen Marc Slepin:

But there’s no question that that was an error and a delinquency on their part, Your Honor.

Potter Stewart:

And you don’t know whether or not it’s the — it was at least the practice — their practice to submit this form generally or whether this was just an individual idiosyncrasy?

Stephen Marc Slepin:

No sir.

No sir, that was the point of the question I suspect without any knowledge and I have no knowledge that this was adduced in the testimony below that the impermissible form with the excise phrase was generally distributed, yes sir.

And in fact in the Adams case, the Court will recall from those portions of the record which are included in the appellant’s brief, there was remedial action taken by the administration, admittedly 10 years after the fact to withdraw the impermissibly enlarged oath and to submit a revised oath with the excise provision deleted, yes sir.

The position that the appellees wish to take before this Court is complicated somewhat Your Honors by virtue of our inability to follow this ariadne thread of the appellant.

Stephen Marc Slepin:

The appellant seems to take the position that vagueness is applicable when a person is a school teacher, but vagueness as a constitutional challenge somehow is not applicable when one is a legislator.

To take the position that some of the arguments apply to sanitarians, but others don’t seem to apply to teachers and I confess, though this is an admission which perhaps I’m not compel to make, that I’m not quite following that particular argument.

I am following the argument of this Court’s statement in Bond, in the three cases which it affirmed and with respect to the oath, I took with respect to the two prescribe oaths that Government employment maybe conditioned upon the exaction of an oath.

And I might point out to the Court right now that I am persuative that the State of Florida and then the other state could exact from a doctor who becomes an employee of the State and who takes the position as an employee in one of the State Hospitals.

An oath making him disclaim, if you will, that he is suppose to intercept us, to making disclaim that he is an advocate of Euthanasia and its not beyond the realm or by the reason or experience that a man who favors Euthanasia or a man who was opposed to Dr. Lester’s discoveries and who does not believe in antiseptic procedures, founds it upon either religious commitment or you if will, political commitment.

Morris Cone once said not who — not all who rave or divinely inspired and it maybe that a man is misdirected, but nevertheless feels he has a First Amendment Right to believe in Euthanasia.

Yet, I think that an oath per se addressed to this individual is most eminently reasonable and ought not to offend constitutional rights.

Byron R. White:

What about the belief part of this oath?

I take it there’s a belief clause that survived below —

Stephen Marc Slepin:

There are Your Honor and —

Byron R. White:

What’s your position about that it might be —

Stephen Marc Slepin:

Our position is that there are two belief clauses and I think that’s precisely what the appellant said.

The appellant said that the affirmative mode of the oath which reads as follows, “I do hear by solemnly swear that I will support the Constitution” is in point of fact he says.

A belief oath and its really a negative oath masquerading as an affirmative oath.

Byron R. White:

What about the other part?

Stephen Marc Slepin:

The other requirement is “I do not believe in the overthrow of the Government of the United States or of the State of Florida by force and violence” and we support that and I should like to cite to the Court at this point the opinion of the lower court in Olson versus Phillips affirmed by this Court at 397 U.S. 317.

The Olson oath was an oath Your Honor, to uphold the Constitution of the United States and the Constitution of the State of Colorado.

In explanation of that oath, the Olson case went on to say and I quote, “The present oath is an affirmation of belief in organic law and disbelief in the use of force to overthrow the Government.”

And I think that’s a quite —

Byron R. White:

Don’t we affirm judgments and not opinions?

Stephen Marc Slepin:

You do indeed, Your Honor and I’m urging upon the Court the reasoning of the Olson Court not the strict words which I’m — which I certainly would not claim that this Court adopted per se.

The point I’m making is that if the affirmative oath means anything to uphold the Constitution, it seems to me could quite reasonably and I think its preeminently reasonable mean that one of vows a belief in organic law and the infinite mutability of the Constitution through the organic process and the avowal simultaneously a disbelief in the utilization of force and violence to overthrow the Government.

Now, the point that we wish to make in this regard is simply this: no hearing procedure is prescribed or allowed by the Constitution with respect to President of the United States nor with respect to myself and my four colleagues who stood before the bar this morning, nor is it allowed so far as I know to members of the executive legislative and judicial departments of the Federal Government of the several states.

Thurgood Marshall:

Well in those cases, they had the protection of the Sixth Amendment and you don’t have that protection?

Stephen Marc Slepin:

Excuse me, sir.

You mean, it’s authorized by the Sixth Amendment?

Thurgood Marshall:

Yeah, it doesn’t authorize you to require this oath of a teacher and I think that’s the difference between what’s you’re talking about now?

Stephen Marc Slepin:

Your Honor, respectfully I disagree on this ground.

I disagree on simply ground and I trust it’s not too simplistic that oaths per se are not anathematized by the Constitution.

The Constitution is very specific —

Thurgood Marshall:

Well, I don’t know who, well at least, I’ve never thought that.

I’ve never thought that because Article VI says so.

Stephen Marc Slepin:

Precisely.

And because oaths —

Thurgood Marshall:

But that doesn’t mean that I have to agree that all oaths are good?

Stephen Marc Slepin:

Certainly not.

We wouldn’t urge that upon this Court.

Thurgood Marshall:

But why then we get to this case, is this oath good, then I what my belief is?

Stephen Marc Slepin:

Yes sir.

Thurgood Marshall:

What business is that of the State of Florida to what the belief of a teacher is?

Stephen Marc Slepin:

We think is the first order of business as this Court pointed out in Shelton and as it pointed out before that in Abler.

School room is a very sensitive place.

The minds of our students are a very sensitive instruments, malleable as they should be and the State —

Thurgood Marshall:

What about the typical law school students?

Stephen Marc Slepin:

I beg your pardon?

Thurgood Marshall:

What about the typical law school students?

Stephen Marc Slepin:

I’m not the quite —

Thurgood Marshall:

[Voice Overlap]

Stephen Marc Slepin:

— there’s anything about the minds of law school students —

Thurgood Marshall:

Or judging by the by the law school professors?

Stephen Marc Slepin:

It applies to them indeed Your Honor.

I should hope that the minds of law schools students are subject to imprint by their professors.

At least, it’s been suggested to me.

Thurgood Marshall:

How can you place that [Attempt to Laughter]?

Stephen Marc Slepin:

At any rate, the State does, as this Court pointed out, have a vital concern in maintaining the security of the State and the question is, What can they do in that regard?

Now, if I have to swear an oath and an oath which I would point out to the Court requires me, not merely to uphold the Constitution Your Honor, but an oath to conduct myself uprightly whatever that means, to draw upon the vagueness argument of the appellant, an oath to conduct myself according to law whatever that means to draw upon the scalpel use by the appellant, then it seems to me clear that its far more specific to require in the affirmative and the negative mode, these two avows of belief and disbelief and that’s all the State of Florida is doing.

The question is, are oaths per se anathematized by the Constitution and the answer is no.

May the Government condition employment or office upon the exaction of the oath and the answer is sometimes depending upon the nature of the oath.

Is a hearing necessary if one requires an officer or employee to swear that he will uphold the Constitution.

None has provided the President, none is provided me, none is provided you.

Stephen Marc Slepin:

We think it’s not necessary with respect to an affirmative oath.

Is it vague to say that one swears to preserve, to protect, and to defend the Constitution as the President must according to Article II.

Certainly, it’s far vaguer than saying, I don’t believe in the violent overthrow of the Government.

Is it a prediction as opposed to a promise because appellant asks this Court to invalidate this oath on the grounds that it may well be a mere prediction.

One maybe predicting when one says, I do not believe in the violent overthrow, that violent overthrow will come as opposed to promising.

I should think that this was set to rest in the Dodge (ph) case when the Court says, that belief means a promise; not a prediction and if were not content with the Dodge (ph) case in light of subsequent cases, then I merely refer this Court to the oath prescribed by Article II which says, I will execute and surely the President is saying that he promises to execute, not that history will demonstrate that he did execute.

The meaning of these oaths Your —

Thurgood Marshall:

But the whole problem about hearing as to the presidential oath, I don’t know of any elected President as refused to take it?

Stephen Marc Slepin:

Your Honor, I don’t think that’s the test of the constitutionality of it.

Thurgood Marshall:

Well, do you think there should be a hearing there?

Stephen Marc Slepin:

I most surely do not sir.

I see no need for a hearing and the very interesting argument, and I think the correct argument made in the Smiley and Olson cases is that a hearing has to do with the weighing and sifting and finding of evidence.

It has to do with the confrontation of the accusers and it has to do with cross examination, none of which applies to the instant situation.

Byron R. White:

Well, you want to pursue your position that in case of a school teacher it’s quite alright for a state to bar a school teacher for refusing to answer a question, “do you believe in the overthrow of the Government by force and violent?”

Stephen Marc Slepin:

As I pointed out and indeed as this Court has pointed out, State has very compelling concern it seems to me in the beliefs as a spring to action.

Surely, we’re not so obstructionist that we want to be exceedingly careful as to belief that human belief is a relevant to human conduct.

And this Court has pointed out time and again that the State has a vital concern in education.

Indeed in the Brown case versus the Board of Education, it was noted that education the principle business today of Government.

This Court has noted in Shelton and Tucker and earlier Adler is concerned with the very sensitive minds of its students.

Yes sir.

Byron R. White:

So your — I take it, your saying and if they say, Yes, I believe in the overthrow by force or violence or if they refuse to take the oath saying, I do not believe in it, that right then and there that Florida may bar the person from teaching, is just doesn’t a preliminary question?

Stephen Marc Slepin:

No sir.

Unlike one or two of other cases with which this Court was concerned, principally the case of the California tax exemption, there is no weighing and sifting, no judgmental element which enters into this.

And that case is the Court recalls, the assessor was mandated to make factual determinations.

The swearing of this oath or the refusal to swear the oath is dispositive of the matter under Florida law and one — yes, sir.

Harry A. Blackmun:

Mr. Slepin, let me — somewhere along the line will you comment on the argument that the true subversive isn’t going to be bothered by any loyalty oath in the first place.

I want you to touch on that before you get down to —

Stephen Marc Slepin:

I’ll comment directly upon it at this point if I may sir.

I think its probably true that one who is engaged in espionage or one who has an insidious purpose is not going to scruple at either lying or taking some other action which will avoid, placing them in the clutches of the law or which will at place him outside the area in which he would like to find himself to carry out his mission and while it seems to me quite clear and I should certainly be a fooling and diluting myself if I were to take any other position that the Florida loyalty oath like any oath is not a panacea in terms of security.

And that the Florida loyalty oath does not assure the school authorities that they’re having present in their classrooms, competent, dedicated loyal people.

Stephen Marc Slepin:

It is a measure number one, which we don’t think is constitutionally impermissible and therefore, it is measure as are so many measures within the broad discretion of the legislator of the State of Florida.

And if the legislature of the state feels that this is one important symbol and the symbol which may have more or less utilitarian effect, then it seems to me so long as it is constitutionally permissible, the legislature of the State of Florida and her sister states must be granted that leave to impose such a symbolic oath.

And indeed we would seize upon the question put to counsel for appellant, it is in point of fact a symbolic oath and we feel it is a symbolic and it is important to note as was subscribed before this Court this morning, and as the Constitution itself requires.

Hugo L. Black:

May I ask you, when this law was passed?

Stephen Marc Slepin:

1949, I believe was the initial act Your Honor.

Warren E. Burger:

Was there any oath of any kind before that?

Stephen Marc Slepin:

I’m not aware of any Your Honor, but I certainly wouldn’t be surprise if there were some kind of oath required.

I’m not precisely aware of that and perhaps counsel for appellant can answer that as he rises.

Warren E. Burger:

Was the first one passed the same one as it is now in effect?

Stephen Marc Slepin:

Yes sir —

Hugo L. Black:

[Voice Overlap] Amendment?

Stephen Marc Slepin:

The same one, but far more abundant because it contains the provision which was excise by this Court in Cramp and then contained the other provisions which were excise by the court below and we’re not arguing about those judicial excisions.

So, it was generally the same oath, but it contained three more provisions that it now contains as it sits before this Court in this case.

Hugo L. Black:

I wonder if you know how many people had been discharged from office for failure to sign the oath?

Stephen Marc Slepin:

I have no knowledge Your Honor of any persons being discharged other than those who are the parties to the cases now before the Court.

William O. Douglas:

How many are they?

Stephen Marc Slepin:

There are several thousand teachers in the state.

There are many, many, many thousands of state employees.

Hugo L. Black:

U am not talking about [Voice Overlap]

Stephen Marc Slepin:

Oh!

I’m sorry sir.

Three in the Adams case and Mrs. Kennel in the instant case.

Hugo L. Black:

Two people?

Stephen Marc Slepin:

Four in all, I think Your Honor.

Four in all I believe.

Harry A. Blackmun:

It is more to have tenure?

Stephen Marc Slepin:

I’m sorry Your Honor.

Hugo L. Black:

Except you think maybe there was this loyalty oath before 1949?

Stephen Marc Slepin:

I should suspect that there was but I know of no statute prior to 1949 and my research didn’t reveal one.

Thurgood Marshall:

Teacher is on a year by year contract probable few the —

Stephen Marc Slepin:

They are until the first few years of teaching Your Honor, where upon the gaining continuing contracts and —

Thurgood Marshall:

That’s in first two year?

Stephen Marc Slepin:

Two or three years I believe Your Honor.

Thurgood Marshall:

So, they’d have to take this oath three times?

Stephen Marc Slepin:

I strongly suspect that they would Your Honor, yes, but I’m not all —

Thurgood Marshall:

But suppose a teacher says as of this moment, I am not for advocating the avowal to overthrow the Government but I can’t guarantee what my research and study might lead me to believe, would that be okay?

Stephen Marc Slepin:

No, I think not Your Honor.

Thurgood Marshall:

It just got to take it that way or else?

Stephen Marc Slepin:

I think so Your Honor.

Warren E. Burger:

Just the way you do in this Court in the morning in the Court.

Stephen Marc Slepin:

Precisely in the — I think it stands on the same feet as the oath sworn before this Court —

Thurgood Marshall:

Except, I don’t know about you but I didn’t take an oath that I wouldn’t overthrow the government, did you?

Stephen Marc Slepin:

Your Honor, —

Thurgood Marshall:

You oath it.

No, I’m saying is the oath a little different. [Attempt to Laughter]

Stephen Marc Slepin:

It is not given to me to exercise judicial interpretation, but I suspect that the oath which she did take, has some very real meaning to it and I think it involves a very real commitment of belief as this Court stated in the Dodge (ph) case and belief means a promise.

Thurgood Marshall:

I agree with you and I don’t agree with the other side that it’s just symbolic.

I most certainly don’t agree with that, but my worry is that how a teacher for example of mathematics has to take an oath that I will not agree about to overthrow the Government?

Stephen Marc Slepin:

Your Honor —

Thurgood Marshall:

And that — my whole point is where I mentioned before is no leeway in these joints here?

Stephen Marc Slepin:

There is no leeway in this respect because it applies to all state employees —

Thurgood Marshall:

Alright.

Stephen Marc Slepin:

— of every sort or variety, including the sanitarian whom I think occupies an extremely important place and society and anyone who has roamed through New York during the garbage strike is acutely and the sensitively aware of that.

And I should think that the state even has a compelling interest in maintaining whatever symbolic protections it can with respect to the sanitarian, who on my scale of values is not the lowly creature who is below oath.

He is not below an oath anymore than the teacher is above an oath because again, the oath itself is not anathema and secondly because this particular oath is well within what we think the Court has decided is permissible.

Warren E. Burger:

I think Justice Blackmun had a question —

Stephen Marc Slepin:

Yes, sir.

Warren E. Burger:

If he is not getting in —

Harry A. Blackmun:

Well, perhaps its been answered.

I was merely interested in knowing whether Florida has tenure for teachers as for instance Arkansas does not?

Stephen Marc Slepin:

For University personnel, Your Honor.

For public school personnel, it’s what’s called a continuing contract, meaning that after they’ve taught for approximately three years, they then go on a continuing contract and may only be dismissed for cause and they are procedures outlined for that.

So, it’s called continuing contract in the elementary and secondary schools, a tenure in the higher education area.

And let me just fleetingly refer to severability.

This Court stated the rule in Jackson.

It was stated by the Supreme Court of Florida in Cramp and it’s quite clear that we have an affirmative, the negative mode requiring in a avowal of belief and avowal of disbelief fundamentally probably the same of avowals, if you will, and I don’t think the Constitution, and I think the cases don’t say that the Constitution anathematizes a grammatically negative oath irrespective of what the meaning of it is.

And I should think that this Court would not commit itself to the proposition that because an oath happens to be framed in the negative then there is some supervening commandment which says that negative oaths per se are objectionable to the Constitution.

Several —

Hugo L. Black:

May I ask you is that oath as you interpret it means that the person who takes it has to swear that he will never under any circumstances or conditions, no matter how bad the Government maybe attempt to overthrow it?

Stephen Marc Slepin:

No sir.

I think that it does not.

I think that it does not as I stated to this Court, Your Honor, and I trust that I’m on reasonable ground, thought makes me far less categorical in my statements than appellant who challenges all oaths under any circumstances.

It seems to me that we are concerned with this case at this time involving these parties.

We are not and I’m as grateful as Your Honor is living in the Third Reich at this point and we are not faced it seems to me, Your Honor, with the circumstance which faced Simon Wehre (ph) or some other revolutionary who is concerned with the Gestapo or who is concerned with the totalitarian state.

And if Your Honor asks me whether I would project this oath into the abstract, I can only tell Your Honor that I trust that the defend — parties, defendant and appellees in this case are perhaps in their own way every bit is committed to the notion of individual liberty and freedom as are the appellants in this particular cause.

But I can’t project into some totalitarian future which I trust will not descend upon us, and which I trust will not give rise to a case before this bar.

Hugo L. Black:

You are saying if the man had to face that situation, he should take, he should continue to abide by that oath?

Stephen Marc Slepin:

Your Honor, I can’t —

Hugo L. Black:

Suppose the Government, I don’t think it ever will and I hope that it never will, suppose it should, if ever Government like get this, would you say that he can than have to swear that he will not fight it?

Stephen Marc Slepin:

Your Honor, I think that the Judge Leonard Hand put it, well, and it maybe very paradoxical.

As I recall he said, “the Government, any Government, and I assume he meant a totalitarian one juridically as well as our Government has the right to protect itself against revolution and any person oppressed by that Government who does not have available to him constitutional means of altering that Government has a moral right to do what he can to alter it.”

And I think that’s the everlasting, living paradox with which any man in any state is caught.

Thank you, Your Honor.

Warren E. Burger:

I think you consumed all your time counsel.

The case is submitted.