Keyishian v. Board of Regents of Univ. of State of N. Y.

PETITIONER: Henry Keyishian, et al.
RESPONDENT: Board of Regents of the University of the State of New York, et al.
LOCATION: State University of New York at Buffalo

DECIDED BY: Warren Court (1965-1967)

CITATION: 385 US 589 (1967)
ARGUED: Nov 17, 1966
DECIDED: Jan 23, 1967
GRANTED: Jun 20, 1966

John C. Crary, Jr. - for the appellees
Ruth V. Iles - for the appellees
Richard Lipsitz - for the appellants

Facts of the case

Harry Keyishian and other faculty of the University of Buffalo became state employees in 1962, when the University of Buffalo was merged into the State University of New York system. As state employees, Keyishian and the other faculty members were subject to statutes and administrative regulations meant to prevent the appointment and continued employment of “subversive persons.” Because the appellants refused to sign a statement declaring that they were not Communists and had never been Communists, they were subject to dismissal and/or non-renewal of contract. The appellants sued for declaratory and injunctive relief and argued that the program of statutes and regulations violate the Constitution. A three-judge federal court upheld the constitutionality of the program.


Are the provisions requiring public servants to formally renounce Communism so overly broad and vague that they are unconstitutional?

Media for Keyishian v. Board of Regents of Univ. of State of N. Y.

Audio Transcription for Oral Argument - November 17, 1966 in Keyishian v. Board of Regents of Univ. of State of N. Y.

Earl Warren:

Number 105, Harry Keyishian et al., appellants versus Board of Regents of the University of the State of New York.

Mr. Lipsitz.

Richard Lipsitz:

May it please the Court, Your Honors.

This case has come before the Court as a result of a complaint filed on behalf of the class of persons known as the Faculty of the State University of New York at the University of Buffalo, Buffalo, New York.

A complaint was filed following the requirement imposed upon the members of the faculty of that institution when that institution became a state institution in 1962 and previously having done a private plea owned, operated, maintained university at Buffalo, New York known as the University of Buffalo.

When it became a state institution in 1962, the officials of the State University of New York of which this was then a part applied for the first time to these particular faculty persons and others the requirements of what are known as the Feinberg Law of the State of New York.

The Feinberg Law of the State of New York is the subject of course of the Adler decision previously decided by this Court in 1952.

In our complaint, we attack again as was have done in the Adler case but in a much more comprehensive way and in a much broader scope as I might say, the entire complex of statutes administrative regulations procedures and certificates that have become known as the administration and application of Feinberg Law and more specifically we attack in our complaint Section 3021 and 3022 of the New York Education Law, Section 105 of the New York Civil Service Law, Article 18, Section 244 of the Rules of the Regents of the University of the State of New York, the current body over the trustees, the latter whom administered trustee institutions of higher learning, the former of whom the Board of Regents are responsible for the entire state education system.

And also we attack in our complaint the procedures implied -- applied rather by the various defendants to implement the complex statutes known as the Feinberg Law.

The facts of the case are as follows and they have to be, I suppose, discussed on two different levels, if I may.

The first level on which they should be discussed is what happened with the statute following the decision of this Court in the Adler case and in that respect, the facts are these.

As of the time of the decision of the Adler case, the Section 3022, the heart of the Feinberg Law as such was not applicable by its very terms to any employees whether they'd be faculty or other kinds of personnel to institutions of higher education.

The statute was applicable solely and wholly to institutions known as public schools which in New York State and elsewhere in United States are those considered to be elementary and high school.

In 1953 after the Adler decision, the New York State legislature added these words to Section 3022 of the New York Education Law and I quote, “In all other personnel and employees of any college or other institution of higher education owned and operated by the state or any subdivision thereof,” thus, making the statute, for the first time, applicable to university, college and college faculty, professors and other personnel.

Furthermore, this was --

William J. Brennan, Jr.:

Does that make the issue here different than it was in Adler?

Richard Lipsitz:

We say that it makes a different issue.

Yes, Your Honor.

Of course, I think it should be stated at the outset if I haven't made it plain and we are also attacking the entire statutory arrangements even as it was previously before this change in 1953.

William J. Brennan, Jr.:

Yes, but I gather this what you've just said would be the predicate of an argument which you don't have to overrule Adler defined for you as to college --

Richard Lipsitz:

That is -- that is correct.

Yes, sir.

The other changes occurred of which much was made by the decision of the court below, the three men court which heard this case about which we will see more later was that Section 12-a of the New York Civil Service Law that being the statute at the time of the Adler case was in 1958 changed to Section 105 of the New York State Civil Service Law and prior to the time of its change to becoming Section 105, it added a new provision.

That new provision is the second paragraph of 105(c) which may be found, if Your Honors care to look at it, at page 113 of our brief and also of course in the record.

And that Section added these words, “For the purposes of this section, members of the Communist Party of the United States of America or the Communist Party of the State New York shall constitute a prima facie” -- two words prima facie having been emphasized, “evidence of disqualification for appointment to a retention of any officer position in the service of the state or of any city or civil division thereof.”

That section -- that provision rather was not in the then Section 12-a of the Civil Service when the Adler case was before this Court.

It was added to 12-a subsequent to Adler and then was converted in the Section 105 of the Civil Service Law.

At the time it became 105 of the New York State Civil Service Law, there was also added subdivision 3 to formerly 12-a and now 105 and subdivision 3 is found at page 114 of our brief and also of course in the record and rather than quoting it from you, I will tell you that it adds to 105, a provision which -- but for one sentence is almost identical with the provisions of Section 3021 of the New York Education Law.

The one sentence which is added as a reference to a definition of what is meant by any treasonable or seditious act or acts to the New York Penal Law, Sections 160 and 161 but which will not expressly refer to are the sections of the New York Penal Law where the definitions of these terms could be found.

We are not here attacking as such the constitutionality of Section 160 and 161 of the New York Penal Law.