Slochower v. Board of Higher Education of New York City – Oral Argument – October 19, 1955

Media for Slochower v. Board of Higher Education of New York City

Audio Transcription for Oral Argument – October 18, 1955 in Slochower v. Board of Higher Education of New York City

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Earl Warren:

Number 23, On the docket, Harry Slochower versus The Board of Higher Education of the City of New York.

Mr. London.

Ephraim London:

The Court will recall that Dr. Slochower was being questioned by the Senate Subcommittee when the Court recess — yesterday afternoon that he had testified that he was not a member of the Communist Party, that he had not been a member of the Communist Party for the years after 1941 and refused on the grounds that his answer might tend to incriminate him to state whether he was a member in 1940 or in 1941.

Dr. Slochower stated further that he had expressed himself, I believe, publically in opposition to some communist doctrines.

Two weeks after the hearing, Dr. Slochower received a notice from the Board of Higher Education which governs the college in which he work that by resolution he was dismissed.

He had been working for the city system as an instructor and a college professor, I assume 27 years.

He had tenure by statute.

I think counsel for the appellee will concede that had Dr.Slochower been guilty of any other wrong doing, he would have been entitled to notice.

Had he perjured himself to use a specific instance given by the corporation counsel?

Had he contumaciously refuse to answer questions?

Had he been guilty of arson, seducing a student or stealing money from the college, he would have been entitled to a hearing before he could be discharged.

But once he invoked the constitutional right, he lost his right to a hearing.

He lost his right to notice.

He lost all of the rights guaranteed him by the statute and the elaborate procedures that have been formulated for discharge of professors by the Board of Higher Education.

I shall return to that question later, the question of procedural due process.

John M. Harlan:

(Inaudible)

Ephraim London:

I think he had been entitled to a — to a hearing under New York laws and being deprived to that, he was deprived of due process.

I think that in any event, in view of that fact that the statute determined the status namely, that he was ineligible for future employment, he would certainly be entitled to a hearing under due process requirements.

John M. Harlan:

(Inaudible)

Ephraim London:

Not specifically under 903 and the courts have — have decided that Section 903 is automatic.

I don’t quite understand what that means but it is in the language of the court, automatic.

The section is theoretically triggered into action by someone’s invoking the Fifth Amendment.

Hugo L. Black:

(Inaudible)

Ephraim London:

No, Your Honor the statute says that he must invoke the You Honor, in connection with conduct of his office but that’s been so broadly interpreted, that I now believe, that it means practically any invocation of the Fifth Amendment.

Particularly, if we adopt the arguments of the corporation counsel on which I shall also referred too later.

Hugo L. Black:

(Inaudible)

Ephraim London:

I think that’s the interpretation that’s given by the court or rather that’s the — that’s the actual effect.

If I may anticipate my argument, corporation counsel has stated that the invocation of the Fifth Amendment is a kind of dishonorable thing, well then it would flow, I think, if would naturally follow that anybody who invoked it was dishonorable and shouldn’t be employed in the public employ — in the public civil service.

Hugo L. Black:

Don’t let me (Inaudible)

Felix Frankfurter:

Are you suggesting by your statement that for a commission of — of crime it would not be charged automatically, that seems to me, there’s no hearing was necessary?

Ephraim London:

A hearing is necessary.

He would have to have a hearing before he could be discharged.

Felix Frankfurter:

What I was saying automatically means that no hearing is necessary.

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

All right.

Under 902, are your suggesting that because a hearing is necessary, (Inaudible) under New York law that that is a necessary requirement of due process.

Are you suggesting that if a hearing is given in those case and not in a case like this, that amounts to an equal protection of the law.

Ephraim London:

I would — I would say this Your Honor that you’re opposing two different problems.

One is the problem of a hearing before the Board of Regents or the Board of Higher Education — I’ve forgotten just which conducts the hearing and the other is a trial in which one is convicted of a crime.

Felix Frankfurter:

Well, I’m assuming that a person has been convicted of a crime, outstanding the — the judgment of the sentence, as I understand it on the New York law, on the basis of that it cannot automatically (Inaudible) give him a hearing.

Whatever the —

Ephraim London:

I believe that’s true, Your Honor

Felix Frankfurter:

That is the New York law.

Ephraim London:

I believe that’s true.

I’m not saying —

Felix Frankfurter:

Now, you say that although that’s true for a man that is convicted of heinous offense, he still must give him a chance to explain something, is that right?

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

You say that although having true as the heinous — conviction for heinous offense merely, the invocation of the Fifth Amendment cuts his head off without any opportunity of his condition.

It’s something (Inaudible)

Now, I’m asking you, are you claiming the requirement of a hearing in the case of — even though there is a conviction.

There’s a necessary requirement of due process or are you claiming that whether it is or it isn’t the fact that a hearing be given in those cases, in a much greater passion and not in this case, isn’t that a denial of equal protection?

Ephraim London:

I — I’m just trying to emphasize what I think the weakness of the Corporation Counsel’s Office.

I think it’s completely unreasonable for the Corporation Counsel to argue as he has.

Felix Frankfurter:

You mean just logically, that’s just logical point you’re making?

Ephraim London:

It was a logical point I was making.

Yes, Your Honor.

Felix Frankfurter:

It was a logical point.

Ephraim London:

Precisely.

Felix Frankfurter:

All right.

There’s a debating point.

Ephraim London:

Precisely.

Felix Frankfurter:

We’re not here to lift the debating point.

We’re here to see what constitutional advice there is in an answer by a state.

Ephraim London:

I think there is a constitutional advice, Your Honor, and the fact that there is no —

Felix Frankfurter:

What if — that’s what I’m asking —

Ephraim London:

Is that there is not hearing and that the man has been ajudged ineligible for future employment.

To — to illustrate how unfair the — the operation of this particular statute I merely pointed out that in other more heinous offenses to use, Your Honors language, one is entitled to a hearing.

When is entitled to — to a discussion before the Board, before he can be discharged.

Felix Frankfurter:

I suppose many unfairness (Inaudible) might be unfairness.

The legislation of the 48 States that do not rise to the level of denial of due process.

Ephraim London:

No.

But due process, Your Honor, “is essentially in incorporation of the principles of fairness and equity.”

I think I’m quoting, Your Honor when they say that.

Felix Frankfurter:

What I’m trying to find out what your constitutional point is?

Ephraim London:

My constitution —

Felix Frankfurter:

I suggest — I suggest you address yourself to that and not worry about the debating point of the corporation counsel.

Ephraim London:

I shall address myself to the constitutional argument.

Before we get to the Constitution you spoke of a — was it a regulation or a statute that gave the hearing?

Ephraim London:

I believe that there are both, Your Honor.

I believe that there is a statute in the educational law providing for hearing.

You mean that calls attention to them in your brief.

Ephraim London:

I don’t think I have, Your Honor, but if — if I may add to the argument, I think, I can find it very short order.

In fact, my (Voice Overlap) Section 6206.

(Inaudible)

Ephraim London:

Section 6206 —

(Inaudible)

Ephraim London:

Thank you very much.

It’s Section 6206 (10) of the New York Education Law and pursuant to that Section, the Board of — of Higher Education or the Board of Regents has promulgated regulations with respect to the conduct of hearings.

They’re rather elaborate regulations and they were not attached to the — to the briefs of the transcript of the hearing below.

I take it not to — not in the New York brief either, is it?

Ephraim London:

No, Your Honor.

It’s not part of the record of the — at all.

(Inaudible)

Ephraim London:

No, Your Honor.

They make no reference to Section 903.

At least they didn’t at the time this — this case came up.

Earl Warren:

Mr. London — Mr. London, concerning the point you are making when Justice Frankfurter asked you his question and apropos his question I — I just like to ask you, do you claim that this man has been denied the equal protection of the laws or that he’s been denied due process or both?

Ephraim London:

I claim that he — that he has had a privilege abridged in violation —

Earl Warren:

What —

Ephraim London:

— in violation of the Fourteenth Amendment, the Privileges and Immunities Clause and I also claim that he has been denied due process.

These are two separate arguments that I should like to treat separately if I may.

Earl Warren:

Yes.

Do you make the — the point of equal protection of laws, denial of it?

Ephraim London:

I — I have not, Your Honor, because I think that there was some disagreement in the Court as to whether equal protection or I would apply or not and I have treated this as a violation of the Privileges and Immunities Clause because I think it clearly is as abridgement of an immunity.

Felix Frankfurter:

And you wouldn’t — could he be persuaded to adopt the equal protection?

Ephraim London:

I could be.

[Laughs]

Ephraim London:

If the Court should wish to adopt that argument, I shall have no complain.

(Inaudible)

Ephraim London:

As a matter of fact, Your Honor, the Equal Protection of the Laws Clause was invoked at the very outset.

It’s in the petition and I think I can call your attention to the — to the precise section.

I believe at page, it says that the petitioner was deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment that have been the — the argument —

Hugo L. Black:

Did you raise the question of bill of attainment?

Ephraim London:

Yes, Your Honor.

We have raised that too.

Now, with respect to the statutes offense against the Privileges and Immunities Clause the Section provides for the dismissal of an employee, a state employee or city employee rather who invokes the constitutional right against self-incrimination.

I don’t believe the word constitutional is in Section 903 but anyone who invokes the right to refuse to incriminate himself is under the statute to be discharged.

Before this Section was enacted in 1938, the New York constitution read exactly as the federal constitutional provision with respect to self-incrimination.

The exact language as, Your Honors are familiar is, “Nor shall he be compelled in any criminal case to be a witness against himself.”

That was the New York statute before 1938.

Ephraim London:

Now, in 1938 — that was the New York constitution, I’m sorry.

In 1938, the New York constitution was amended to validate such a law as Section 903.

The New York constitution now provides, that no person shall be compelled to be a witness against himself, providing that any public officer upon being called before a grand jury, refuses to answer any relevant questions.I’m just reading the relevant portion.

Relevant question concerning his office should be removed from office by the appropriate authority and shall forfeit his office at the suit of the Attorney General.

Now, without that change in the New York constitution, Section 903 would have been unconstitutional under the laws of the — under the constitution of the State of New York.

I think that as the Court of Appeals has held, one who invokes the state constitutional right may properly be discharged under Section 903.

But the amendment of the state constitution can certainly not affect the federal constitutional right and it was the federal constitutional right that was invoked in this case.

I think there can be no question about it.

It was specifically referred to in the hearings as the Fifth Amendment right and it was before a federal body, a Senate Subcommittee, the Committee on the judiciary.

So, there can be no question but that it was a federal right, in a federal proceeding that was here invoked and because of the invocation of that right, the appellant, Slochower was discharged.

Now, the argument has been made that Section 903 doesn’t really inhibit the right against self — self-incrimination that just imposes a condition on public employment.

I think the argument is a spacious one.

I think that merely because the Section does not say we forbid public employees to invoke the Fifth Amendment that it doesn’t have that effect.

It obviously, does have that effect because it is followed by a penal consequence namely, discharge.

Now, I think, I’ll call your attention of the fact in — in my brief that most of the penal laws of the State of New York and I believe the same is true with the federal laws, do not forbid any particular act.

They provide that an act shall be punished in a particular manner, the fact that that is merely the provision — that the provision is merely want for punishment doesn’t mean that the State doesn’t forbid the act.

And so, in this case the State of New York in effect forbids its employees to invoke the Fifth Amendment on paying of discharge from their positions.

I think there’s also a line of cases to which I have called the attention to the effect that a State cannot impose an unconstitutional condition on a privilege that it is granting the unconstitutional condition in this case, being the condition that one must surrender his constitutional right against self-incrimination.

Hugo L. Black:

What’s your (Inaudible)

Ephraim London:

I think not, Your Honor.

I think that the — the section between the case that we have and the case where a federal employee might be discharged for invoking the Fifth Amendment, is very great because in our case, the case that we have now, a state employee is in effect being told that he may not invoke certain rights in a purely federal proceeding in a matter over which the Federal Government has exclusive jurisdiction.

It think that the regulation is in effect an invasion on the sphere reserve for — for federal action.

The distinction, I believe, Your Honor was made in — in the Mitchell case in that case the — the question was raised as to whether or not a federal employee in being denied the right to engage in certain political activities was being deprived of state right.

And the Court found, I believe it’s on page 96 of the opinion that the state rights were not being violated.

And so, in this case, I think, you will have a different question of purely state right was being affected by Section 903, as it is a federal right was being affected and I think the distinction is important.

What — what is the — the act that is being — on which what you called punishment is vested on this term?

Ephraim London:

The act in this specific case —

What — what I’m directing my inquiry, there’s nothing that he did so far as the Federal Government is concerned except the fact that he happened to testify before Congress or Committee.

Ephraim London:

Yes, Your Honor.

It’s purely a state matter except as it maybe affected by the Federal Constitution is it not?

Ephraim London:

I think not, Your Honor.

I think that if — if that were true, the Senate Subcommittee would have been entirely — would have been trespassing in an area where it had no right to trespass.

The Senate Subcommittee had no right to — to investigate the education in the State of New York.

What it was investigating as it — as the Chairman stated was the — was the violation of the Internal Security Act or rather the enforcement of the Internal Security Act was purely federal question.

Yes.

But the result that happened to your client was to — a state result?

Ephraim London:

Precisely.

Which they have used — the State had used as a reason for a discharge.

Ephraim London:

Yes, Your Honor.

But the reason for the discharge was not his wrong doing.

The reason for the discharge was his violation rather his invocation of the constitutional right.

I — I’d like to emphasize that.

I’d suppose they’d say it was the violation of the federal — state law.

Ephraim London:

Your Honor —

I though it said.

Ephraim London:

It’s — it’s just the state law that we claim offense against the Constitution because it says you may not invoke the federal right.

Hugo L. Black:

Does it say all federal rights or just one?

Ephraim London:

No, Your Honor.

Hugo L. Black:

Are they barred —

Ephraim London:

This — this one federal right.

Hugo L. Black:

— from holding jobs in New York if they invoke any privilege —

Ephraim London:

No, Your Honor.

Hugo L. Black:

— of the Federal Constitution?

Ephraim London:

This — this refers only to the right against self-incrimination and it’s only by the interpretation in this case that we must hold that the statute means that it — that it invokes it — it imposes a penalty in the event the federal right against self-incrimination is imposed, is invoked.

That is now the meaning of the statute as the — as construed by the highest court of New York and we must accept that as the meaning of the statute.

But in answer to Justice Reed’s question I — I like to emphasize that no one has accused Dr. Slochower of any wrong doing.

It hasn’t been suggested that he is a member of the Communist Party.

It isn’t suggested that he has — is incompetent.

It isn’t suggested that he isn’t fit for his job, on the contrary, I think, he has been recognized as the one of the most competent and eminent members of the — of the school staff.

Stanley Reed:

Oh, I — I assume all that.

Stanley Reed:

My inquiry is directed — as I understand it, you’re making some point that this was before the Federal Congress?

Ephraim London:

Yes, Your Honor.

Stanley Reed:

Well, I don’t see any — any distinction whether he had pleaded the same plea before a New York State trial court or before New York legislative investigation — your position has been just the same, wouldn’t it?

Ephraim London:

No, Your Honor.

It would have been a quite different position.

Because had he been in the state court or before a state body, the right that he would have invoked would have been his state constitutional right against self-incrimination.

If the court —

Stanley Reed:

He could have invoked his federal before the state court.

Ephraim London:

No, Your Honor.

Under the Twining — under the Twining and Adamson cases, I think, that when he is the state court and he invokes his right against self-incrimination he is not invoking his Fifth Amendment right.

I — I think there’s some question is to wether or not the Court would adhere to that decision today but that is the — the Court’s holding.

Stanley Reed:

Well, what — in that case, it is also pointed out that there is an opportunity to raise the federal question of due process?

Ephraim London:

We —

Stanley Reed:

And I understand you pleaded the Fourteenth Amendment as well as the other.

Ephraim London:

Yes, Your Honor, we do.

I — I shall come to the due process question —

Stanley Reed:

(Inaudible)

Ephraim London:

— very shortly.

Stanley Reed:

The due — due process question as relating to the plea of self-incrimination.

Ephraim London:

Yes, Your Honor.

I have — I have by the way divided the argument into the two —

Hugo L. Black:

I suppose what you’re saying is that if the Constitution gives the man a right in a federal court, in a — for the Federal Congress, claimed the benefit of the Fifth Amendment.

Ephraim London:

Yes, Your Honor.

Hugo L. Black:

That is a privilege or immunity granted by the Federal Government for him to claim it that’s called on to (Inaudible)

Ephraim London:

I’m sorry, sir.

Hugo L. Black:

Therefore, the constitutional provision which says, “No man shall deprive of another, there is no State should deprive one of his privileges, his immunities under the Federal Constitution,” would fit this case —

Ephraim London:

I’m sorry, sir.

Hugo L. Black:

— under the (Inaudible) doctrine.

Ephraim London:

Yes, Your Honor.

And I’ve also — I’ve also argued that this is an invasion of the — of the area reserved to the Federal Government, namely the regulation of its own proceedings before a federal body.

Felix Frankfurter:

May I — may I ask, why you didn’t raise that on the burden against the common question (Inaudible).

May I ask why that issue was not explicit raised in the New York Court of Appeals?

Ephraim London:

That was implicit, Your Honor, in the — in the entire brief.

They — a question with which we —

Felix Frankfurter:

It was implicitly in the entire brief.

Why did the Court of Appeals been granting your (Inaudible) restricted to the Fourteenth Amendment and not the point you’re now —

Ephraim London:

If Your Honor please.

I — I mentioned yesterday in answer to Justice Harlan’s question, the argument that was raised by corporation counsel in opposition to the motion for remittitur which was as follows and I read now from page 5 of the appellee’s brief in the Court of Appeals.

It’s apparent from the forgoing discussion that if this Court finds that a question of federal constitutionality was properly presented, the alternative relief of reargument sought by a petitioner is unnecessary and his argument was that there was no point if this questions have been properly presented and passed upon by the Court, in the Court’s amending the remittitur or granting reargument in that respect and, I think, the corporation counsel was entirely right.

I think the Court had passed on the question.

Felix Frankfurter:

But the Court of Appeals said the contrary in the remittitur.

Ephraim London:

I don’t think the Court of Appeals —

Felix Frankfurter:

The Court of Appeals in its remittitur which (Inaudible) to certify the District Court that the question under the Federal Constitution was real.

But they say implicitly if the federal (Inaudible) it’s a question under the Fourteenth Amendment.

Suppose beyond that and particularized what — in what respect was a violation of Fourteenth Amendment.

Now, evidently the Court of Appeals did not think that in its decision, it says on the question that you’re now arguing, namely, that the state can’t impair whatever the Fifth Amendment gives (Inaudible).

That’s the argument you’re now making, isn’t it?

Ephraim London:

I’m going further in saying that the Court specifically passed on the Fifth Amendment.

Felix Frankfurter:

Is that the argument you’re now making, isn’t it?

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

I’m suggesting to you and I’d like to have an answer.

A plain English of the remittitur in which although you impliedly asked the Court to certify to this Court, the (Inaudible) of the Fifth Amendment, the Court of Appeals haven’t (Inaudible) didn’t pass on it because it did certify that a question under the Fourteenth Amendment arose but it is significant, silently huge to certify to the question under the Fifth Amendment.

Ephraim London:

Well, Your Honor and I disagree on the significance of the silence.

Felix Frankfurter:

So all I’m — it’s the matter of reading English.

Is it true that in the remittitur they say explicitly that they did pass on the constitutional question of the Fourteenth Amendment?

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

Do they say anything about having pass on the question (Inaudible)

Ephraim London:

No, Your Honor.

Felix Frankfurter:

That’s all I’m saying.

Ephraim London:

I do add if I may, that it was not necessary for the Court to repeat whether it had said before in its opinion.

Earl Warren:

Now, what — to what are you referring now Mr. London?

What it said in its opinion.

Ephraim London:

I’m — I’m referring to — to the following.

Earl Warren:

Yes.

Where is it found please?

Ephraim London:

Page 56 of the record —

Earl Warren:

Yes.

Ephraim London:

— in which the Court in discussing the opinion of the Appellate Division says as follows and that the charter provisions do not abridge the constitutional privilege against self-incrimination, it was referring to an argument below in the Appellate Division.

If that argument was properly raised in the Appellate Division, I think, under the Bryant case, it’s properly before this Court.

I go further now and refer to the dissenting opinion of Mr. Justice Desmond or Judge Desmond rather in which he says that, “All sides can see,” that aside from the supposed applicability of Section 903, the teachers could not deprived with their possessions for exercising their Fifth Amendment right.

He is speaking of the Fifth Amendment right.

This is the basic question.

Felix Frankfurter:

Is there a privilege against custom and (Inaudible) of New York constitution?

Ephraim London:

Yes, Your Honor.

I had just mentioned that before.

Felix Frankfurter:

Am I right (Inaudible) referring with the privilege under the New York constitution?

Ephraim London:

Because Judge Desmond says the Fifth Amendment.

Felix Frankfurter:

What?

Ephraim London:

Judge Desmond —

Felix Frankfurter:

That is his dissenting opinion under the (Voice Overlap) —

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

— opinion doesn’t tell me what the Court says.

Ephraim London:

But he tells you what the argument was, Your Honor.

Felix Frankfurter:

I am troubled by this Mr. London that the New York Court of Appeals have been asked to clarify explicitly the ground on which it went, to strike as depriving that (Inaudible) sharing of words that they wouldn’t say and he also consider the Fifth Amendment if they thought they’ve been, when they wrote a whole page and tell you they went on (Inaudible)

Ephraim London:

It’s regrettable, Your Honor, that they didn’t.

But apart from that question, I think, that it was unnecessary to have raised the Fifth Amendment question below —

Felix Frankfurter:

Was it necessary to raise the Fourteenth Amendment (Inaudible)

Ephraim London:

I think it was.

One of the — one of the constitutional provisions had to be relied on.

Now, I’m talking — I —

Felix Frankfurter:

Why did you ask for remittitur, is it your claim in the decision?

Ephraim London:

I — I stated yesterday that — that I — I thought that the motion for remittitur — for the amendment of a remittitur was ill advised.

I’m more convinced to it now, Your Honor.

[Laughter]

Now, in considering the — the question of — of whether the statute under consideration violates Article 6 of the Constitution and violates the — the Privileges and Immunities Clause.

The question of reasonableness does not enter into the discussion whether or not the law is a wise one, whether or not the law is a reasonable one, if it invades an area reserved to the Federal Government or if it violates or abridges a privilege granted by the Constitution then the law must fall whether reasonable or no.

In the — in our argument relating to the violation of the Due Process Clause, we must answer the question of reasonableness because this, it is claimed that the statute violates the Due Process Clause of the Fourteenth Amendment because it is arbitrary and it is unreasonable.

And it is arbitrary and it is unreasonable because it limits a federal constitutional right and it’s claimed, the appellant submits that that right had nothing whatever to do with his fitness for employment or with his right to work for the public school system.

Now, the appellee has argued that the invocation of the right is a matter relating to a teacher’s employment because there’s something dishonorable or indecent about refusing to answer question on the grounds of self-incrimination.

To use the precise argument that the Board has used in this Court, they say that either the invocation of the right tends to show that a man is guilty or that the one who invokes the right is a perjurer.

In either case, he is immediately branded and stamped as being guilty of wrong doing the moment he invokes his federal constitutional right.

Now, this Court has repeatedly asserted that the Fifth Amendment right against self-incrimination is one of the Board’s freedom that it’s a privilege of great value, “The Chief Justice’s opinion in the Quinn case.”

This privilege of great value would be worth nothing if the moment one invokes it, he is immediately assumed to be guilty of the crime about which his questioned or he’s assumed to be perjurer or one or the other.

It would virtually nullify the act completely, both nullify the amendment completely.

And if I can use a — a much abused and misused term, I think, that that argument is subversive of the Constitution because it eliminates the provision completely.

One wouldn’t dare to exercise the constitutional right if these were the inferences to be drawn.

(Inaudible)

Ephraim London:

Not if it — not if it tendered to show that you are guilty.

If one were to assume that you are guilty and you are being prosecuted.

This would be the strongest evidence against you, Your Honor, if you invoked the Fifth Amendment.

This same argument if made in a criminal prosecution would destroy the defense.

You — you understand that the States says that that’s evidence of the crime?

Ephraim London:

I think I used their language that it would tend to show —

Harold Burton:

What was your answer to Justice Harlan’s (Inaudible)?

Ephraim London:

Well, if it would tend to show it, Your Honor.

If that’s the inference to be drawn.

I would think that it would be disastrous in a — in a criminal prosecution.

Harold Burton:

In the public opinion (Inaudible)

Ephraim London:

Well, with their — I — I don’t think that in law we can distinguish between the legal effect and the public attitude.

I would like to reserve the balance of my time for rebuttal.

Earl Warren:

You may Mr. London.

Mr. Scannell.

Daniel T. Scannell:

May it please the Court.

I would like at the outset to address myself to the procedural point in our brief but I do not wish to conceive that we do not argue in our brief that the point made by Mr. London that this 903 Section is in violation of the Fourteenth Amendment of the Constitution and that it abridges a federally given right.

We made that in our brief and I will meet that later on the argument.

Unfortunately, however, that point was not raised in the Court of Appeals.

Felix Frankfurter:

What — what point (Inaudible)

Daniel T. Scannell:

The point was not made in the Court of Appeals that the invoking of the Fifth Amendment in a federal proceeding and the subsequent dismissal under a state statute for invoking the Fifth Amendment for refusing to answer a question into official conduct that that violated that portion of the Fourteenth Amendment which states, “That no state may make or enforce a law which abridges a privilege or immunity given to a citizen of the United States.”

Was that argued?

Daniel T. Scannell:

It was not argued.

I will proceed to demonstrate that it was not.

Earl Warren:

To what purpose did — did the appellant raise the question of the Fifth Amendment before the Court of Appeals?

Daniel T. Scannell:

The purpose for which he raised the Fifth Amendment before the Court of Appeal — well actually he did raise it at all.

Earl Warren:

Then why —

Daniel T. Scannell:

The only argument he made in the Court of Appeals was that it deprived him of the due process to which he was entitled under the Fourteenth Amendment because he had no trial, because he had no hearing.

He didn’t have compensation of witnesses.

He didn’t have the right to cross-examine.

That’s his whole argument in the Court of Appeals.

As a matter of fact, in the Appellate Division, a citation in the opinion of that Court in which he relies.

In the Appellate Division, he made no reference to any federal right or any constitutional right so that when he states in his reply brief, at page — referring to page 50 of the record that the charter provision does not abridge the constitutional privilege against self-incrimination.

What the Appellate Division is referring to there, is this argument made by the appellant.

I read from this point heading, point two, Section 903 of the New York Charter is an unconstitutional abridgement of rights guaranteed by Article 1, Section 6 of the New York State Constitution.

The Section is void and have no effect and it cannot be held to sanction the appellants dismissal.

That’s what the Appellate Division was talking about at page 50 of the record, when it said that they found no conflict between Section 903 and the New York State Constitution.

Similarly, he refers the Court to page 56 of the Court of Appeals opinion, contain that the — page 56 in the record where all the Court of Appeals was doing was paraphrasing what the opinion of the Appellate Division was.

And it stated there that the Appellate Division found that there was no abridgement of the constitutional right referring to the New York State Constitution.

Earl Warren:

But Mr. Scannell if — if the Fifth Amendment was not raised before the Court of Appeals.

What would have led Judge Desmond in his dissenting opinion to say, “All sides conceive that aside from the suppose applicability of Section 903, the teachers could not be deprived to their position for exercising their Fifth Amendment Right.”

Daniel T. Scannell:

What Judge Desmond meant there Mr. Chief Justice, is that if 903 weren’t on the statute books of New York State, this teacher could not be dismissed because if you will see he refers to matter of Gray.

In the Gray case, it involved a lawyer in Staten Island who was accused of (Inaudible) chasing and he was asked to execute a waiver of immunity before going before the Court.

Daniel T. Scannell:

And he stated I will exercise such a waiver, but when I go before the Court, I’ll make full disclosure about all my books etcetera.

But he refused to sign the waiver.

He was brought up for purposes of disbarment to determine whether he was contemptuous of the Court and the Court of Appeals said that he was protected by the New York State Constitution and he may invoke the privilege.

So that all Judge Desmond was talking about, is that in view of that Gray decision, if there was not an act by the legislature such as Section 903, this teacher could not be dismissed for invoking the Fifth Amendment.

That’s all Judge Desmond was talking about.

Earl Warren:

Well, it just seems to me though that unless someone had raised the Fifth Amendment right, there wouldn’t be any occasion for him to conclude that all sides concede that except for that, there would be a violation of the Fifth Amendment.

Daniel T. Scannell:

Well, Your Honor, I’ve gone through the Appellate Division of the Court of Appeals brief of this appellant from one page, from the front page to the back.

And the only reference that I find to any federal question is when he argues that the appellant, Slochower, was deprived of property rights without due process in violation of Article 1, Section 10 and the Fourteenth Amendment of the United States Constitution.

The clear import of the argument is the Fourteenth Amendment as far as the due process part is concerned.

Felix Frankfurter:

Well, will you — further — as I understand (Inaudible) stated awhile ago, that if you think no argument can be made here because none was made below, due process — deprived of due process in relation to the Fifth Amendment (Inaudible).

Daniel T. Scannell:

That is my argument, Judge Frankfurter.

Felix Frankfurter:

Now, I can’t quite follow that.

The Court of Appeals said in their remittitur that the question, what presented under the Due Process Clause in that this appellant, Slochower claim that the automatic operation of Section 903 depriving of (Inaudible)

Now, 903 means, it says in the Section, “That anybody who testifies before a Senate Committee that automatically (Inaudible) is that right?

Daniel T. Scannell:

Yes, but his — I’m sorry.

Felix Frankfurter:

Now, therefore, I do not see how the Court of Appeals certified that, that one can say if you cannot consider the (Inaudible) before he testify and invoke the Fifth Amendment.

Daniel T. Scannell:

Well, I would say this, Your Honor —

Felix Frankfurter:

By that —

Daniel T. Scannell:

That question was —

Felix Frankfurter:

— I don’t understand.

Daniel T. Scannell:

It wasn’t presented to the Court of Appeals.

Felix Frankfurter:

The Court of Appeals tells that it was (Inaudible) took place, namely, that the automatic operation of Section 903 requires.

Now, what is your automatic operation, namely, he invoked the Fifth Amendment before the Senate Committee.

And therefore, we have to consider acquisitions in view of what the Court of Appeals says they did (Inaudible)

The relation, the legal validity of taking away something from him because he claimed the privilege before the Senate Committee.

It doesn’t mean that or does it mean.

Daniel T. Scannell:

It means that he’s complaining the he had no trial, that there was a tenuous section and that under —

Felix Frankfurter:

He had no trial.

That’s right.

He said he had no trial but merely because he invoked the Fifth Amendment he (Inaudible).

Daniel T. Scannell:

But his quarrel is with procedure, not with the substance in the statute.

He never addressed an argument to the substance in the statute.

Felix Frankfurter:

But the Court of Appeals — did they — they considered this question that automatic operation, deprive them of tenure and of a trial (Inaudible)

Daniel T. Scannell:

Well, the argument that was made by the appellant in the Court of Appeals was not on the line of the — his Fifth Amendment rights being violated.

Felix Frankfurter:

What do you conceived to be the function of a remittitur drawn as (Inaudible) particularity by the Court of Appeals that the motion made before it but he conceive the function of remittitur to be for our purpose.

Daniel T. Scannell:

To outline —

Felix Frankfurter:

To go behind the remittitur and see whether every argument that knowledge make within the scope of the remittitur was made or are we to assume when the Court of Appeals of New York tells us, “This subject matter was considered.”

We are to consider that subject matter whatever argument you — in support or is it on opposition.

Daniel T. Scannell:

I would say this, Mr. Justice Frankfurter.

If the language was absolutely clear, there would be no question that your position is correct, well it’s correct anyhow.

But when there is some doubt in you mind as to what the Court of Appeals sent to you for review.

I think it is pertinent to understand what the Court of Appeals had before it.

Felix Frankfurter:

Makes it all look an impossible job.

(Inaudible) submitted in the Court of Appeals in the Appellate Division, Supreme Court and to check all arguments to see whether every argument is (Inaudible) below although, it was the same language, the one the Court of Appeals certified, the argument needs to be open.

Daniel T. Scannell:

Well, I think the answer to that might have been if the petitioner has gone back to the Court of Appeals and ask them to rephrase the question if they would as he now puts it.

Your Honor, I was — Mr. Chief Justice, I was sorry for the reply brief yesterday and certain points were raised in the reply brief, which I have answered orally but I would like permission to submit an explanation to his reply brief.

I could have it by next Monday, I think.

The Section we have here under examination namely, 903 of the New York City Charter has for its purpose the assurance that employees of the City of New York will give their full cooperation to any properly constituted investigating committee that makes inquiry either to the affairs or Government of the City of New York or inquiry into the official conduct of one of the employees of the City of New York.

Now, the purpose in providing that no employee called to testify under those circumstances and in answer to questions along that line.

The purpose in precluding him from continuing as an employee and pleading self-incrimination seems to me rather obvious.

If the employee point-blankly refuses to testify, he is of course subject to contempt action by the investigating body, as well as dismissal by the employee — employer.

Similarly, if he testifies falsely, he could be prosecuted for perjury.

But when the employee invokes the Fifth Amendment, he is effectively (Inaudible) that committee.

The committee can go no further with that witness.

Now, when the inquiry is to the employees official conduct it seems to me is under an obligation to make complete and frank disclosure.

The same obligation he would have if he will call before the Board of Higher Education and ask the question.

Now, in addition, the state legislature undoubtedly have in mind that certain inferences flow from the invoking of the privilege against self-incrimination.

We do not say that there’s a clear inference of guilt.

What we do say is that under the law as interpreted by this Court that for the witness to invoke the Fifth Amendment, he must sincerely believe that his answer will tend to forge a link and a chain of evidence which may lead to his conviction for a crime.

If he invoke to for any other reason he is invoking it improperly and he has invoking it perjuriously.

Earl Warren:

Do you mean that presupposes guilt then his —

Daniel T. Scannell:

No, Your Honor.

Earl Warren:

— he was claiming of it?

Daniel T. Scannell:

It does not presuppose guilt but it does presuppose that he has reason to believe that his answer will provide a link in evidence which may lead to his guilt and the peculiarl thing about the Fifth —

Hugo L. Black:

May lead to his guilt or may lead to his conviction?

Earl Warren:

Conviction.

Daniel T. Scannell:

May lead to his conviction.

Earl Warren:

There’s a difference isn’t it?

Hugo L. Black:

But I do not argue that it is an irrevocable conclusion that he is guilty.

I say that the only time he may invoke it is if he honestly believes it may tend to lead to his conviction.

And the peculiar thing about the Fifth Amendment is that the reason is locked up in the mind of the invoker.

Or does he have to go as far as to believe that may lead to his conviction for his prosecution (Inaudible).

Daniel T. Scannell:

As I read the case, Your Honor, it — the language seems to be to forge a link which would in some way provide a chain of evidence to convict him of a crime.

Earl Warren:

You believe that — that a claim of the privilege, it could be consistent with innocence?

Daniel T. Scannell:

I believe that a plea of — the plea could be consistent with innocence but I do say that you can’t shut off the inferences which ordinarily must flow.

The ordinary obligation of any citizen is to come forward and give full and complete testimony.

But the framers of the Constitution in order to protect the people against a — the practice of torture that existed in the old English law setup an artificial protection, but it doesn’t mean that when the protection is invoked that no inferences flow there from, that’s especially true when the employee is call before a body that has a right to know, when the employee is called upon to a conference conduct and he then retreats behind the Fifth Amendment for the privilege against self-incrimination.

Earl Warren:

Well this statute — this statute says — says, any legislative committee doesn’t say just to State of New York or the State of — or the Government of United States, but supposed this man went over into New Jersey.

And the — and the state legislative committee there subpoenaed him and brought him up and asked him the same questions and he gave the same answers.

What would you — what would you do about that?

Daniel T. Scannell:

Well, the Court of Appeals in this case, of course, was dealing only with a Senate Committee and there are many areas where the Government has an interest in the operation of the city.

For instance —

Earl Warren:

Might not — might not the other State have the same interest in who is in its borders?

Daniel T. Scannell:

Oh, I would say that if an employee of the Board authority and he will call and he lived in New York and was called to New Jersey which is a — a member of the agreement that he would have to answer.

Earl Warren:

No.

Let’s don’t take that.

Let’s just take him as a citizen over in that citizen of New York, over in New Jersey for some business or profession purpose.

Suppose there’s a group of educators met over in New Jersey.

I suppose petitioner attended that convention.

Suppose he made a speech and suppose a legislative committee immediately subpoenaed him and ask him the same questions and he gave the same answers.

Earl Warren:

Do you think that would be grounds for immediate dismissal and barring for the rest of his life from service in the City of New York under this charter section?

Daniel T. Scannell:

Well, of course, the Court of Appeals doesn’t pass on that.

But taking your facts as they are, if he did certain acts in New Jersey which would justify being called before a legislative committee in New Jersey and the questions that were asked concerning those acts had a direct bearing on his fitness as a teacher, I would say that, in my own opinion, that it probably would apply.

But as I say, the Court of Appeals has not passed on that set facts.

Felix Frankfurter:

What are the terms that if he — from this case namely, and would have a direct bearing, how could you tell it have a direct bearing unless you have an opportunity to be heard on the question of the direct bearing.

In answer to Chief Justice, you said, “this haven’t occured.”

Daniel T. Scannell:

Yes.

Felix Frankfurter:

And whether he refuse to answer would have a direct bearing upon him, his qualification and his desirability and effectiveness as a teacher.

Daniel T. Scannell:

That was —

Felix Frankfurter:

That isn’t in this manner would exclude any such issue.

Daniel T. Scannell:

Well, I think the Chief Justice question was, that since the Court of Appeals has included the United States Senate as a legislative committee within the contemplation of Section 903 might not the same question be presented if a legislative committee in New Jersey asked the question.

Felix Frankfurter:

I should think you have to answer yes because in the (Inaudible) case —

Daniel T. Scannell:

Well, that is true.

Felix Frankfurter:

— prevail that conviction no matter where and I don’t see the —

Daniel T. Scannell:

Well, that’s true.

Felix Frankfurter:

— conviction — a conviction no matter where or what irrelevant because (Inaudible) inclusive as that and a statute like 903 simply says an investigation without limiting it in New York.

Daniel T. Scannell:

Well, then —

Felix Frankfurter:

And you got a ruling that it doesn’t make any sense, if it isn’t relevant to New York, is it?

Daniel T. Scannell:

Well, the only reservation I had, Your Honor, is this.

That in the (Inaudible) case, of course, the section of the education law that provided that he is subject to punishment for conviction of a crime even though similar conduct would not be a crime in New York that there the language of the section was passed on by the Court.

I don’t know whether the Court of Appeals would say that the New Jersey legislature had a proper right to make inquiry of —

Felix Frankfurter:

How can — on what possible part of 903 can you say, that covers investigation before a Senate Committee dealing with a matter (Inaudible) or asserting the — as well as implicitly unrelated with the educational system of New York is within the statute because it says before any — to conduct any hearings — anyway, how can you say that it applies with Senate Committee restricted as that case under the Federal Constitution but doesn’t apply to a committee of New Jersey inquiring about the desirable educational standard?

Daniel T. Scannell:

Well, at the outset —

Felix Frankfurter:

That question is open to you?

Daniel T. Scannell:

At the outset, I did say on my own opinion that my answer to that would be yes, but I didn’t want to preclude the Court of Appeals on its opportunity to pass on that question when it’s presented.

Felix Frankfurter:

But you as I return and I assume you said it would deem as relevant if they can show that it has something to do with the function of a teacher.

Daniel T. Scannell:

That’s right.

Felix Frankfurter:

Now the whole point about this case is that the question now is relevant, his claim of (Inaudible) to his function as a teacher is out, not initiated because the consequence follows automatically.

Is that right?

Am I right about that?

Daniel T. Scannell:

Well, I think the state legislature hasn’t anticipated that when it’s the — if I get your question correctly, that when it relates to his official conduct and he invokes the privilege that he in effect hands in his resignation.

Felix Frankfurter:

Well, that’s the way of scraping the result.

The fact is that nobody cared whether his claim of privilege did or did not, that have any bearing on the goodness of that (Voice Overlap) —

Daniel T. Scannell:

Well, that’s correct.

Similarly, if there was a section that any conviction for felony barred you from further employment as you have in some States that would be the same situation.

Hugo L. Black:

Suppose — suppose New York was designed — it’s going to put on a big school building program in the State and pass the law to the effect, that every man must accept what the state offered for his land because it was for school purposes and to find public purpose.

And they then provided that no man could hold a job as a teacher or any job in the State, if he invoke the privilege of the Federal Constitution against confiscation of his property, would that be good?

Daniel T. Scannell:

It would not.

Hugo L. Black:

Why?

Daniel T. Scannell:

Because there’s no relationship between the act of the State in that case.

In other words, what his qualifications as a teacher has to do with his foregoing a right to go to the Federal Courts against this confiscation —

Hugo L. Black:

They could say he’s not a good citizen.

He won’t cooperate with the State.

He shown that he not cooperative and trying to get to school, this great public school program and — and we will not let him serve as a teacher unless he’s willing to do that.

And he stands on it and says, but I invoke the privilege of their Constitution that my property shall not be taken without just compensation.

And they say, but we’ve determine that this is just under the circumstances.

Daniel T. Scannell:

I think this Court would say that the claim that it’s an attribute of good citizenship to forego a review before a federal court was not a reasonable one.

Hugo L. Black:

Then you are taking the position necessarily are you not?

That it shows bad citizenship for a man to claim the privilege except against self-incrimination.

Daniel T. Scannell:

I say that an employee who is called to answer for his official conduct similarly, even Dean Griswold in using the example of a bank teller who is called in question about the theft of a $1000.

Dean Griswold says that when the bank clerk invokes the Fifth Amendment he is quite properly dismissed.

Hugo L. Black:

Well, as I understand it, your position is that you couldn’t — other constitutional privileges they could claim and New York couldn’t do anything about it.

Because it wouldn’t affect their knowledge as to their citizenship.

But here, it shows a man as a bad citizen if he claims the Fifth Amendment.

Daniel T. Scannell:

I would say it was similar in many respects to the Garner case.

Hugo L. Black:

Would you say that it shows he is a bad citizen?

Is that the basis on which New York law is written?Claiming the privilege against self-incrimination?

Daniel T. Scannell:

By an employee in relation to his official conduct?

Hugo L. Black:

By anybody.

Daniel T. Scannell:

No.

Daniel T. Scannell:

Not by anybody.

And if the question were not as official conduct, the 903 would not operate —

Hugo L. Black:

On its official conduct.

Daniel T. Scannell:

If the question directed to the employee had no relationship to his official conduct, 903 would not operate.

Hugo L. Black:

But can you think of any question that had to do with the man committing a crime, it wouldn’t have something to do with his official conduct if the Government wanted good employees?

Daniel T. Scannell:

I can conceive some matrimonial situations and things like that.

Hugo L. Black:

But — what if it’s a crime?

Suppose it’s a —

Daniel T. Scannell:

Well —

Hugo L. Black:

— felony.

He claims the privilege against testifying that he is of the — on the ground that might infuse — incriminate him for stealing.

You’d say that shows that he is a bad citizenship wouldn’t he?

Daniel T. Scannell:

Well, I would say that it has to relate to his official conduct.

Now (Voice Overlap) —

Hugo L. Black:

Well, if that relates to his official conduct, the fact that he declined to admit, deny that he was a thief.

Daniel T. Scannell:

Well, let’s put the question the other way.

Suppose he were in a matrimonial and —

Hugo L. Black:

I’m — I’d rather talk about the other one.

Daniel T. Scannell:

Well, I —

[Laughter]

Hugo L. Black:

I — what I’m trying to find is and I think your law was good and maybe it’s better to meet for what it is, that you’re saying that because of this particular constitutional privilege for a men to invoke it, shows that he is a bad citizen.

Daniel T. Scannell:

Well, I’m saying that as a — a secondary result that flows.

My argument has two prongs to it.

Hugo L. Black:

What’s the other prong?

Daniel T. Scannell:

One is that his got an obligation to cooperate and he may not be —

Hugo L. Black:

That Federal Constitution says, has told him that he his under no obligation to cooperate in that way by incriminating himself.

That’s what the Federal Constitution said, doesn’t it?

And its about (Inaudible) isn’t it?

Daniel T. Scannell:

I would say so, Your Honor.

Hugo L. Black:

Well, isn’t that what it says, that he is under no duty to cooperate and giving evidence against himself?

Daniel T. Scannell:

Yes.

But you have two parallel things existing.

You have the right of the individual on the one hand and the right of his employer on the other hand.

Now, they’re both existing side by side, the employer has certain rights and the employee has certain rights.

Hugo L. Black:

Now, what constitutional provision says that an employer has a — has a right to discharge his employee because he claim the Fifth Amendment?

Daniel T. Scannell:

Well, I would say that this Court has held in many instances that the constitutional privileges are not absolute rights.

For instance, in the Prince against Massachusetts case which involved the child who was selling religious pamphlets in Massachusetts and the child was under the age of 12.

The parent was arrested or the child was taken into custody, I don’t recall which.

Now, the argument was — they made there that that child was an ordained minister of the Jehovah’s Witnesses and that child was exercising his religious freedom which is given to him under the Constitution, which I think is greater right than the right against self-incrimination.

Yet this Court sustained the right of the State to move in there to protect the child’s welfare.

Similarly, I think the employee —

Hugo L. Black:

Did it — did it sustain the State’s right to do something to him because he claimed that privilege and keep for the Constitution.

Has there even been — has there ever been a decision by this Court that sustain a state law which did something to person in a way of injury to it because he invoked the privilege which he is allowed to invoke under the Federal Constitution?

Daniel T. Scannell:

Well, I think that this is the first time it’s presented to this Court.

But I —

Felix Frankfurter:

You rely — you were — you invoked what you call the principles firs stated (Inaudible) and Justice Holmes decision (Inaudible)

Daniel T. Scannell:

Yes.

Felix Frankfurter:

Well, you think all of it or was it — you think all that Justice Holmes said about the (Inaudible) of constitutional rights.

You quote all of it and therefore I assume you — you adopt all of it.

It said the — well, I think it can hardly be denied that — like (Inaudible)

He had a constitutional right to cross-politics but he has no constitutional right to be a (Inaudible).

I don’t see how you can object to that.

There’s no doubt they’ll say.

There are few employments behind so this does not agree to suspend these constitutional rights (Inaudible) relevant argument by the implied (Inaudible) contract.

On the same principle, the city may impose any reasonable condition upon holding off his immediate control.”

Did you agree that the question in this case have to get down that this is a reasonable condition?

Daniel T. Scannell:

Yes.

That’s rather —

Felix Frankfurter:

Then that is the issue.

Daniel T. Scannell:

I think that is the issue.

Felix Frankfurter:

So that we can consider whether in the circumstances of this case, the precise refusal that was made, when it was made, the time it was made and as the subject matter that was made.

And all the refusal requirement, all the questions on ambiguity for them.

All the questions that were about asked.

And in the precise setting of this case, this is a reasonable condition.

That’s — that was in your position?

Daniel T. Scannell:

That is my position.

Felix Frankfurter:

All right.

Daniel T. Scannell:

But I don’t know whether that’s entirely open to this Court because the Court of Appeals has held that the question related to his official conduct.

And the Court of Appeals held —

Felix Frankfurter:

The Fourteenth Amendment, isn’t that the — not the — to mean, (Inaudible) whether the Court of Appeals was right in saying, that there was a necessarily reasonable relation.

What was done here and the consequences have to suffer.

That was the Fourteenth Amendment has done to bring it to the power of this Court, the action is sustained.

Daniel T. Scannell:

I think that’s our reflection.

I think in view of the Wieman case, that’s true.

I would say though that this case is not too different in many respects from Garner against the Board of Supervisors of Los Angeles.

Felix Frankfurter:

I suggest to you a very important — I suggest to you a very important (Inaudible).

To me it makes a lot difference whether a question is put in answering to refuse by Senator Ferguson in relation to the subject matter that he was charged with inquiry and said he was inquiring.

And the city authority themselves, the education authority of the city putting a question, it was their teaching that they deem relevant.

It’s the only thing that concerns the educational authority, namely, the (Inaudible) of a teacher.

Senator Ferguson wasn’t at all concerned with that.

Daniel T. Scannell:

Senator Ferguson was concerned with the subversive influence in our national public school system.

Felix Frankfurter:

Is there anything to indicate remotely that this man declined to answer whether he had engaged subversive activities.

Daniel T. Scannell:

He cut them off at the outset.

Felix Frankfurter:

He merely said, he wouldn’t answer whether he was a member of a Communist Party in 1941.

And this Court had solemnly decided that in 1941 it wasn’t, as a matter of law, subversive to belong to the Communist Party.

That’s what they totally decided solemnly.

Daniel T. Scannell:

It’s doesn’t have to be necessarily that it’s subversive per se.

Felix Frankfurter:

In 1941, the Communist Party was a perfectly legitimate political party with the column on, I don’t know in how many States having American citizen (Inaudible), is that true?

Daniel T. Scannell:

That is true.

Felix Frankfurter:

That’s true in New York, was it, in 1941?

Daniel T. Scannell:

But I think there is evidence in the Dennis case and in the case —

Felix Frankfurter:

The Dennis case came later.

We’re not talking about the Dennis case, even the Dennis case said, merely to belong to the Communist Party is not an offense or indicated subversively.

Daniel T. Scannell:

Certainly, a question as to Communist Party membership would be the opening question as to explore in whether he had engaged in any subversive activity.

Felix Frankfurter:

And I’m suggesting that it would be open to the educational party of New York to pursue that inquiry.

That isn’t the exact before us.

Daniel T. Scannell:

Well, I — I submit, Your Honor, that we do have this case before us that the Senate Committee was endeavoring to explore to subversive infiltration —

Felix Frankfurter:

May I ask —

Daniel T. Scannell:

— to our public school system.

Felix Frankfurter:

If they ask (Inaudible) whether he ever belong to an organization which he knew, had reason to believe whether subversive organization that he refuse to answer that question?

Daniel T. Scannell:

That question wasn’t put to him.

Felix Frankfurter:

Well, that’s what he refused to answer.

Daniel T. Scannell:

That may have been the question though.

Felix Frankfurter:

I cannot tell why Senator Ferguson didn’t ask that question.

I do know he didn’t ask it and I do know definitely makes you what he made.

Daniel T. Scannell:

Of course I — I think Your Honor is probably aware that during those years, merely prior to 1941, the Communist Party had made its most successful inroads into the New York school system.

Felix Frankfurter:

I do know that a lot of good many people who the Government itself utilizes its witnesses, where communist — members of the Communist Party in 1941.

Therefore, membership in the Communist Party of 1941 does not carry whether the implication belonging to subversive organization.

Daniel T. Scannell:

If I may point this out to you though, Your Honor.

If you recall on the Garner case, the affidavit requirement called upon the employee to state whether he had ever been or was a member of the Communist Party or the Communist Political Association.

In other words, the affidavit was seeking information and —

Felix Frankfurter:

I’m suggesting that it was put by the educational authority.

(Inaudible).

Daniel T. Scannell:

Yes.

Felix Frankfurter:

I’m suggesting the body of charge is (Inaudible) educational system.

Suppose it is important to put questions to teach and I’m suggesting to you that here necessarily to use parties that put to question, the only question to which answer is refused or is not concerned with the fitness of a teacher though, of course inquiring to that, you may bear on the fitness of a teacher.

Daniel T. Scannell:

Well, I think that the Senate Committee did say to Senator Ferguson when in this part at page 2 of my brief I quote it.

“We do not think that security of this nation is determined by what teachers do teach, whether or not they follow the — we do think that the security of this nation is determined by what teachers do teach whether or not they follow the communist line in teaching, whether or not they are members of the Communist Party.”

And then he goes on to state the evidence before then indicates it is a clear close relationship between membership and subversive activity.

Felix Frankfurter:

And was that true in 1941?

Daniel T. Scannell:

It may very well have been true.

Felix Frankfurter:

May have been, but this Court says that the fellow who wasn’t a Communist Party to admit.

Necessarily did not thereby — it was not necessarily thereby establish that he is a member of a subversive organization.

Daniel T. Scannell:

Well, the problem I have, Your Honor, with your position is this, if I may be so bold.

Felix Frankfurter:

That’s what —

Daniel T. Scannell:

You make a distinction between —

Felix Frankfurter:

(Inaudible)

Daniel T. Scannell:

— you make a distinction between the Los Angeles Board asking the question and the question would have covered the same period and the United States Senate Subcommittee asked him the same question and I don’t quite see the distinction.

That’s what troubles me.

Earl Warren:

Is there automatic ouster if — in Los Angeles for a failure to answer the question?

Daniel T. Scannell:

Well, there was — there was in fact automatic — in effect automatic ouster because the statute require the — that the affidavit be filled out and when they refuse to fill it out, the only issue to be determine whether they refuse or not similarly with the oath.

Earl Warren:

Mr. Scannell, let me ask you this question.

Suppose that Dr. Slochower, instead of having been with the school board for 27 years was a young man, too young to have been a teacher even in 1941.

Suppose he went to work for the school board in 1952 and the same question was asked to him, it was asked in this case and he claimed his — his privilege as he did.

Would you say that — that the sanctions of 903 could be applied to him?

Daniel T. Scannell:

I think that the Court would have to determine whether a membership back in 1941 would have a relationship to his official conduct of 1952.

I think it may very well be a proper question though because Mr. Chief Justice, you got to pick a starting point in all these inquiries.

And the person, I think this is true when New York, has nothing to fear by being frank.

There are a number of teachers who have admitted past Communist Party membership who are teaching in the New York City school system today.

The problem is where the person undertakes to cut you off an inquiry and cut you off from the information which you feel you have a right to have.

That’s the problem.

Earl Warren:

Yes.

But, Mr. Scannell, if 903 applies and if as the Court of Appeals says, that his dismissal is automatic.

How could this young man that I mentioned ever get to show that the — his conduct in 1941, ten years before he is old enough to be a teacher did not have any relation to his professional conduct.

And as I understand he is automatically ousted from his position by reason of his claim of the privilege.

Daniel T. Scannell:

Well, there are certain elements which must be established, Your Honor.

If he went into Court and he raised the issue that the question did not have a relationship to his official conduct, he would have a full judicial review on that question and if the Court determined it did not then Section 903 would not be operative.

I want — I want to ask in regard to the contention that was made in the petition that this man has been dismissed without notice of charge and opportunity of hearing.

What — what become of that allegation?

Daniel T. Scannell:

I think he urged it as part of his due process argument.

Daniel T. Scannell:

Now, of course what happen there was that the Board of Higher Educations got an official transcript of his testimony and they determined that he had invoked the privilege and they asked the corporation counsel, also in opinion as to whether the Board of Higher Education was within the contemplation of that Section and the answer was yes.

And then they notified him that he had brought about his own separation from service by invoking the privilege against self-incrimination.

But under — under Section 6206, I understand that in other charges he is entitled to a hearing.

Daniel T. Scannell:

Well, I think the answer to that is this, Your Honor.

The New York State has setup a system whereby employees are picked on a competitive basis and that as long as they discharge their duties faithfully and well they have tenure.

They may not be disturbed.

I understood that this gentleman had tenure.

Daniel T. Scannell:

He did have tenure.

And that is all contained in Section 6206 of the State Education Law.

Then a specific statute was passed covering this specific situation and of course the specific statute, Section 903 takes away that tenure feature in this particular case.

Under — under this statute, you get no hearing at all?

Daniel T. Scannell:

It’s — as though you have in your resignation as Judge Conway said in the Court of Appeals.

But you have first to decide whether or not it was under his official —

Daniel T. Scannell:

Oh, yes.

And (Voice Overlap) —

How — how to —

Daniel T. Scannell:

— as judicial review.

— determine that?

Daniel T. Scannell:

I beg your pardon.

How — how is that determined?

Daniel T. Scannell:

Well, the Board of course has the initial obligation to determine it and when the Board determines that there is a relationship between the question asked in its official duties.

They say, “You have separated yourself from the service.”

But he has no opportunity to — to appear.

Daniel T. Scannell:

Not before the Board.

He is not given a notice?

Daniel T. Scannell:

He is not given notice to appear, no.

But he is, of course, given as he had here a complete judicial review.

But I — set the point that I’m — frankly the information, he wasn’t given any opportunity to show — the authorities have no connection with its official duties?

Daniel T. Scannell:

Not before the Board of Higher Education.

But he —

But would —

Daniel T. Scannell:

— did argue it before the Court.

— he have — might have all of these situations?

Daniel T. Scannell:

I beg your pardon?

Would he had come before the Board of Higher Education and all of this situation?

Daniel T. Scannell:

If he were charged with — if he were charged with something else.

Due process — in (Inaudible)

Daniel T. Scannell:

That’s right, he have a trial.

Before the Board of Higher Education?

Daniel T. Scannell:

That’s right and then of course judicial review of that.

Yes.

Well, but I don’t understand why it doesn’t have here to establish whether or not this was connected with is official duties?

Daniel T. Scannell:

Because the specific statute superseded the general statute.

I understand that but the specific statute has in it to answer any question regarding the property of Government or refers to the City or regarding nominations or official conduct.

Or some — some things maybe official conduct and some are not controversial matter.

Daniel T. Scannell:

Well, he did argue that.

That it was not official conduct.

He argued before the Court and they consider that problem.

He had a complete day in court on it.

Earl Warren:

On the merits of whether it affected his — related to his official conduct or on the question of the constitutionality of the Act?

Daniel T. Scannell:

On the question of whether this was it — on the issue of whether this question is the Communist Party membership had a bearing on his official conduct for a relationship to it.

That was the issue decided about the Court.

Earl Warren:

Well, in point of time?

Is that in point of time or take this young man that I spoke of a little while ago?

Would he have a judicial review, would they go into the question as to — as to the length of time before he was a teacher.

And his age and the relationship and so forth in determining whether that was a part of — of his official — related to his official conduct or would — or would they just review the question as to whether membership in the Communist Party has — as he refuse to testify about.

Was in itself a matter that affected his official conduct when he became a teacher?

Daniel T. Scannell:

Well, I would say in answering either question, Your Honor, they would have to answer both because when they would determine whether it was a question relating to his official conduct, having a mind in the 1941 date.

They would have to take into consideration all the elements which you speak of in your first case.

Earl Warren:

But would this in a case — in this case that the — the petitioner has here.

Earl Warren:

Would he have been permitted to come in and — and establish that he had been in the school system for 27 years, that he had been a good — a good teacher?

That he had never — never brought communism or any other — other ideology into his teaching and that he had been in all respects without blemish.

Could he have — could he have offered that proof or the purpose of getting — set aside this automatic dismissal for having exercise his Fifth Amendment right?

Daniel T. Scannell:

If you ask me whether the Court could exercise discretion as to whether he should be dismissed or not.

Earl Warren:

No.

Is that — is that kind of proof open to him and — and can he avail himself of it and is he entitled to findings on those — on those things in order to determine whether this is within his official conduct or not?

Daniel T. Scannell:

He did not in this particular case have that (Voice Overlap) —

Earl Warren:

I didn’t ask you that.

I ask you —

Daniel T. Scannell:

— but the Court could if they believe there was a triable issue namely as to whether related to official conduct or not.

They could send it out for trial for a hearing.

Earl Warren:

But is it a triable issue, according to your concept of — of 1903.

Daniel T. Scannell:

I think it may very well be a triable issue.

Felix Frankfurter:

But — but doesn’t the Court of Appeals decision foreclose.

You’re saying that The Court of Appeals is certain there — suppose that this was an official — not to ask an inquiry relevant to what the Senate Committee was (Inaudible)

I guess the decision is not to answer the question put to this witness (Inaudible) necessarily related to his official conduct.

Daniel T. Scannell:

Well, they were speaking of the facts in this particular case.

Felix Frankfurter:

What facts have expect that he didn’t answer whether or not in 1941, he was a member of the Communist Party.

Daniel T. Scannell:

Well, one additional —

Felix Frankfurter:

Any other facts?

Daniel T. Scannell:

One additional fact you have which is not in the example that the Chief Justice gave, was that he was then a teacher in 1941.

In the Chief Justice’s case, he was not a teacher in 1941, he became a teacher, I think, the year was 1952.

Now there you may have a different question.

I don’t think the Court of Appeals passed on that.

Felix Frankfurter:

The Court of Appeals made a point of that?

Daniel T. Scannell:

The Court of Appeals had before the fact that this man was a teacher in 1941.

Felix Frankfurter:

Does the Court of — from your understanding of the Section and of (Inaudible)

Suppose Senator Ferguson has asked that this person has — whether he was a member of the communist over 1933 that (Inaudible).

There’s no time limit in 903, isn’t it?

Daniel T. Scannell:

There’s a — the time limit may have some effect on whether it — it relates to his official conduct.

Felix Frankfurter:

Well, assuming he was a teacher, he has been a teacher in New York (Inaudible) — assuming he’s a teacher all along, would it — under 903, is there any — it certainly is on the record.

Is there any imply of qualifications of the inquiry whether he’s been a member of the Communist Party, 25 years (Inaudible)

Daniel T. Scannell:

I think that might very well be a pertinent question.

Maybe he was one of the founders of the Party.

Felix Frankfurter:

(Voice Overlap) question and I suggest to you the Garner case by term, it only went back five years.

Daniel T. Scannell:

That was only on the old Section I think if you’ll recall.

Felix Frankfurter:

I mean (Inaudible)

Daniel T. Scannell:

Well, of course I cannot dispute that with you but I think on the affidavit, the language was, are you now or were you ever a member of the Communist Party or the Communist Political Association, I think.

Felix Frankfurter:

(Inaudible)

Daniel T. Scannell:

And in that event of course the searching went all the way back and I think quite properly —

Earl Warren:

Do you not think that there’s — that the fact that there is no limitation in time at all and that a man could be asked a question about his conduct 30 years ago and — and apparently these sanctions of 903 would — would be applied to him that that — that has great bearing on the reasonableness of — of the Section so far as due process law is concerned?

Daniel T. Scannell:

Well, Mr. Chief Justice, you must remember what he is doing.

He is saying that my conduct back 30 years ago may provide a link in a chain of evidence against me.

He is the only person who knows what that link maybe.

There is no way of proving it to his mind.

If he believes that an inquiry back that far still has light enough in it that it may lead to his indictment for a crime.

Now, what is the employer to conclude?

Earl Warren:

There again, we get back to the question as to whether you — whether you believe that — that an innocent man could honestly invoke the privilege of the Fifth Amendment.

Apparently, you do not.

You say that — you say that you do but you, wherever we get to the point, why you say, “Well he is the only one who knows and his employer is entitled to make the presumption against him.”

Daniel T. Scannell:

I think — I don’t think that is — is as inconsistent as it sounds.

He maybe innocent but he do — he does know that he has some connection which may provide evidence against him.

Now, I think his employer has a right to know and that it’s inconsistent to say, “I want to cloak myself in the constitutional protection and at the same time, I want to preclude you from Mr. Employer from knowing what this Act was.”

That’s the problem with it.

John M. Harlan:

Do you think it had any bearing at the time he claim his Fifth Amendment privilege, he expressly stated that he didn’t intend thereby to have any implication drawn that he was in greater prosecution?

Daniel T. Scannell:

Well, I think that’s inconsistent with the pleading of the privilege.

John M. Harlan:

He can be entitled to a hearing on that is determination by the Board of Higher Education whether that is bona fide or whether it isn’t?

Daniel T. Scannell:

I think that it’s a question of you can have you taken either.

You can’t go in before the subcommittee and say, “I’m pleading the privilege against self-incrimination.”

And then turn around and say, “But of course I’ve done nothing wrong.”

Daniel T. Scannell:

The privilege, no matter how an expertly pleaded, must be given effect by the Senate Subcommittee which was held by this Court in the Quinn case, where even incorporated by reference.

Harold Burton:

Well, he can.

Felix Frankfurter:

Mr. Scannell, you’re — you’re right about the affidavit of the Garner case.

Daniel T. Scannell:

Thank you, Your Honor.

Felix Frankfurter:

You’re right and I’m wrong.

Harold Burton:

He can claim this Fifth Amendment privilege may not even though he is innocent, know he’s innocent but believes that it might provide a link in an unjust conviction of him if he gave the testimony.

He is entitled to that is he not?

Daniel T. Scannell:

He is entitled to it, Your Honor, but at the same time you got to put yourself in the position of the employer.

He is entitled to an explanation and if it’s a proper inquiry an explanation should be given.

We’re not talking of the — a person coming in to a criminal court.

We’re talking now where he is called upon to explain.

As I said before even Dean Griswold, where you have the bank teller questioned about the money missing, even he concedes that he could be dismissed for propriety.

Stanley Reed:

It was a hearing — administrative hearing perhaps he would’nt be able to (Inaudible).

Daniel T. Scannell:

Well, I would say that it’s not unreasonable for the state legislature to make us a condition that the employee not retreat behind the privilege.

Because if you wait for a hearing, the Committee in many cases has past and gone.

It hasn’t accomplished its purpose, he swore to it.

And I would say that the legislature probably had in mind that they wanted to urge these employees to give full cooperation and I don’t think that’s unreasonable.

Earl Warren:

Well, Mr. Scannell, but you say that the employer is entitled to an answer.

The employer didn’t asked the question here.

It was an entirely different jurisdiction and have no connection with it then he — he doesn’t know what the purpose of the senatorial committee was in doing it.

So, it isn’t a denial in this particular case, it isn’t even a denial to answer the question of the employer.

Daniel T. Scannell:

Well, I think that the Senate Committee have a legitimate interest.

Let’s take an example.

Suppose they gave titled money — title (Voice Overlap) —

Earl Warren:

Well, I don’t say — I don’t say it didn’t have a legitimate interest, but I — I don’t believe that your — that your statement a little while ago that the — you have to put yourself in the employer.

He has a right to — he has a right to know.

How do you know that if they have called this petitioner into the — into the office of the superintendent of schools but what he would stated very — very frankly to him what the situation was, knowing — knowing perhaps the — the manner in which it would be used and so forth.

But it might be entirely different when he goes before another jurisdiction that he’s conducting an investigation for an entirely different purpose.

Something entirely disassociated from the public school.

Daniel T. Scannell:

Well, doesn’t it —

Felix Frankfurter:

That’s the point (Voice Overlap) —

Daniel T. Scannell:

Well, it does come down to this, is a state without power to extend the cooperation of the employee to a Senate Committee.

Suppose in the case of a bank teller.

The — the auditors from the State Banking Commission came in to examine the books and they ask the bank teller the question.

Would the bank be acting with undo haste in dismissing the employee when he said, “I will answer?”

Does the bank have to go through the mechanics of calling the teller in and asked him the same question themselves?

Harold Burton:

In other words, your — you take the position that an employer dealing with the employees be an act on appearances?

Daniel T. Scannell:

I’m sorry, Your Honor.

I don’t —

Harold Burton:

An employer may act on appearances.

You don’t have to paddle full pledge hearing every time he employs somebody.

Daniel T. Scannell:

That’s correct.

And also he can extend the area of cooperation to where the governmental body is.

I don’t think it’s a reasonable requirement to ask the employee to discharge.

Hugo L. Black:

But Mr. Scannell, did I understand you to say that at 1941, the Communist Party was legal in its faith and could run — people could run on that ticket?

Daniel T. Scannell:

My recollection was that — no.

I think the last time the Communist Party was on the ballot was in 1936 because they failed to get the gubernatorial vote.

Hugo L. Black:

What — was there any law against them being on the ticket?

Daniel T. Scannell:

No.

There was not.

Hugo L. Black:

Could you now pass a law which provided that a man should be prosecuted after a full hearing and convict him for having been a member of that Party in 1941?

Daniel T. Scannell:

I don’t think so, Your Honor, but we’re not dealing with that here.

Hugo L. Black:

But — but suppose — suppose you would have to passed the law which provided that the sole punishment that the man who was convicted for having been a communist in 1941 should be barred from holding any office or profit in the State or in a job where he works for the State.

Would that be good?

Daniel T. Scannell:

If he was convicted of communism?

Hugo L. Black:

You — you provided a new law now, to the effect that any man who was found guilty of having been a communist in 1941 could be subjected to punishment and the punishment would be that he should be barred from then on from holding any job under the State.

Would that be valid?

Daniel T. Scannell:

I think —

Hugo L. Black:

If not, why not?

Daniel T. Scannell:

Probably not be valid because of (Voice Overlap) act of effect.

Hugo L. Black:

Well, now what is the effect of this with reference to a man who simply deny having been a communist in 1941.

Is he barred from holding any office or any job in the State for the rest of his life?

Daniel T. Scannell:

For being a communist in 1941?

Hugo L. Black:

For — for having declined to answer whether he was a communist in 1941.

Daniel T. Scannell:

Well, let’s see.

Under the effect of this statute —

Hugo L. Black:

Can he hold any job under the state thereafter?

Daniel T. Scannell:

The answer is no, but that point was not argued below, Your Honor.

Hugo L. Black:

I’m not talking about what is argued.

The effect — the effect then of this is precisely the same is it not, as though the State had passed a law which said, “That any man who was a member of the Communist Party in 1941 which was not illegal then, cannot hereafter hold any job in the State of New York for the States.

Daniel T. Scannell:

I don’t think so, Your Honor.

Hugo L. Black:

What’s the difference?

Daniel T. Scannell:

The difference —

Hugo L. Black:

In effect —

Daniel T. Scannell:

— is this —

Hugo L. Black:

— in effect?

Daniel T. Scannell:

Well, you’re starting with two different (Voice Overlap) —

Hugo L. Black:

Well, I’m — what is the difference in the consequence to the man except here that instead of being barred from having a job because he belong to the Communist Party.

He’s barred for life from belonging — from having a job because he refuses admit whether he did or not.

Daniel T. Scannell:

But you have two different objectives, Your Honor.

I don’t think the cases are analogous, with all due respect.

Hugo L. Black:

Well, the — the consequence in each one would be that he is barred from holding a job with the state for life.

Daniel T. Scannell:

The consequence in the one maybe illegal and the consequence in the other (Voice Overlap) —

Hugo L. Black:

I’m not talking about (Voice Overlap) consequence wasn’t it?

So that what you’re doing here is indirect, the same as though you have passed the law which stated, “That any man who belong to this Communist Party in 1941 when it was legal and who refused to admit it should be barred from holding a job for the State for the rest of his life.”

Daniel T. Scannell:

I don’t agree with that, Your Honor.

Hugo L. Black:

But is that the result?

Daniel T. Scannell:

The result is that he maybe barred.

But I would like to make this last point.

Hugo L. Black:

But is that the result of what your law does?

Hugo L. Black:

Does it provide that if a man declines to admit or refuses — deny or admit whether he was a communist in 1941 he should be barred from holding a job for the State for the rest of his life.

Daniel T. Scannell:

Well, the trouble I have with that is this, Your Honor.

Hugo L. Black:

Is that the result of it?

Daniel T. Scannell:

If you — may I just say this —

Hugo L. Black:

Yes.

I just like to know if that’s what it does, if it’s not, tell me why?

Daniel T. Scannell:

Well if you would ask me, if a man is put in prison illegally —

Hugo L. Black:

I didn’t ask you.

Daniel T. Scannell:

— and another man is put in prison legally, are they both in prison?

Well, of course, they are both in prison.

Hugo L. Black:

But if —

Daniel T. Scannell:

But one is imprison illegally and the other is illegally.

There’s a distinction (Voice Overlap) —

Hugo L. Black:

Now having — now having answered that.

Will you answer this?

If — is the effect of your law now as you have it, the man who belong to the Communist Party at 1941 or a man who refuses to admit whether he did it or not in 1941 whether it’s perfectly illegal to be a communist and he declines to answer it, can be barred — is barred from holding a job for New York in York State for the rest of his life?

Daniel T. Scannell:

If he declines to answer on the —

Hugo L. Black:

That’s right.

Daniel T. Scannell:

On the privilege and it relates to his official conduct.

The answer is that the statute so reads — may I make this last point?

It may very well —

Hugo L. Black:

If the statute so read, you mean that’s what it does?

Daniel T. Scannell:

Well it may very well be that the Court of Appeals if that argument was made would have severed that Section and left the rest of the statutes stand and that was not urged below and I don’t think it’s proper before this Court.

Earl Warren:

Mr. London.

Ephraim London:

The Court please.

I’d like to correct the statement by my friend Mr. Scannell with reference to the Garner case and I think it’s rather crucial.

He was of the opinion that the Garner case permitted questioning with respect to any prior period.

As a matter of fact, that case related to a statute which provided that the — the employees of the City would have to swear that within five years prior to the effect of date of the law, they have not advise or advocated the overthrow of the Government.

It was limited to the five-year period.

Now, that inquiry was held relevant because of a charter provision that had been passed some seven years before, which made that inquiry, an appropriate inquiry in connection with Government office.

Ephraim London:

So that the Garner case didn’t really relate —

Felix Frankfurter:

Mr. Scannell is right in saying, the affidavit is — it wasn’t limited for five-year period.

Ephraim London:

I — I beg to differ with, Your Honor.

Felix Frankfurter:

Well, is just a question of reading (Inaudible) all we have to do is to read.

Ephraim London:

I believe that it says within five years prior to the effective date of the law.

I maybe mistaken, but I believe that’s correct and I believe that this Court specifically —

Felix Frankfurter:

(Inaudible)

Ephraim London:

This Court specifically limited its — its determination or referred in its determination to the fact that there have been, a 1941 Charter Amendment.

Felix Frankfurter:

That supposed to be (Inaudible)

Ephraim London:

That’s right, Your Honor.

Felix Frankfurter:

That’s a different question to Mr. Scannell.

One is the question of an oath of — and that’s the five-year period.

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

Then there was an affidavit as you now (Inaudible)

Ephraim London:

Yes.

In addition — in addition in the Garner case, in connection with the — in connection with the statement.

It was assumed by the Court that the statement had to be — that the — the statement meant that one with knowledge had advocated the overthrow of the Government or has belong to an organization which had advocated the overthrow of the Government.

In so it was the material and most important factor as the Court later noted in the Wieman case.

Now, there is another tremendously important difference between the Garner case and this one.

And that the Garner case related to a state inquiry with respect to a state matter pursuant to a State Charter Amendment.

I think the difference between that case and the case at bar is probably most dramatically illustrated by a companion case to the Garner case, the Durand case.

Now, before the Durand case came up there had been a prior action.

There were several people in the State of Maryland including Thelma Durand who were running for office.

The State of Maryland required that those people state under oath that all people running for office state under oath that they have not been members of organization which where deemed subversive, something to that effect.

Now, Thelma Durand and the first of the cases, was running for Federal Government Office, I believe for Congress.

The State of Maryland held that that statute did not apply to her but applied to the other defendants or rather the other petitioners, I’m sorry, who were running for state office alone because have that application been made in connection with federal office it would have been an invasion of the federal sphere of action or an area reserved for the federal domination.

Later when the Durand case came up before this Court, the second Durand case, it was case where Thelma Durand was then running for state office and the Court held that she could, that — that the State of Maryland could pass regulations controlling state office.

So here, we have statute which interferes with a federal proceeding or with the Government of federal proceedings.

And therefore, in that connection the question of reasonableness does not enter but I want to answer my friend’s argument with respect to the reasonableness of the statute.

In considering its reasonableness, we may consider several factors (1) the purpose of the statute, (2) the alternative methods and (3) the application to the particular case.

Ephraim London:

Now, with respect to purpose, my friend says it is to compel cooperation with inquiry relating to office.

Well now, the — the State Government is certainly not without power to compel cooperation, it doesn’t need — this means, namely the deprivation or the limitation of the constitutional right against self-incrimination in point of fact, there have been several later cases where teachers declined to answer whether they were members of the Communist Party and they were removed by the State of New York not because of the violation of Section 903 but after hearings, in which it was determined that they had failed to cooperate.

I think that the — the best answer to the argument of the appellee has made is Justice Roberts in the Schneider case in which he said, “That if one wants to prevent littering in the streets, it’s not necessary to limit the right of public assembly to merely pass a law preventing the littering or forbidding or punishing the littering of the streets.”

In this case, if they want to root out communist in the public school system, they have a perfect means of doing so.

As a matter of fact, they found that means in the Feinberg law which this Court upheld.

John M. Harlan:

(Inaudible)

Ephraim London:

It was passed before, Your Honor, that became effective afterwards.

John M. Harlan:

(Inaudible)

Ephraim London:

Yes, Your Honor.

Now, with respect to the — to the application of this particular case, I think, the Court has emphasized in its questions, the fact that this relates to a period some 12 or 13 years prior to the inquiry.

It couldn’t possibly have any — any connection with the teacher’s confidence or ability to teach and there was no claim at any time that this question related to his own confidence and fitness as a teacher.

Thank you.

William O. Douglas:

Mr. counsel — can you file with the clerk Slochower’s brief (Inaudible) —

Ephraim London:

I am about to do that.

I wanted to retain it until the brief.

I wanted to retain that, Your Honor, until the argument —

Has — has there been any report from the Board of Education on the number of teachers that are admitted to communist affiliations (Inaudible) —

Ephraim London:

Mr. Scannell would be able to answer that.

I am not, Your Honor.

I don’t know of any official — it’s more promulgated but I know in my own knowledge that there are substantial number.

Ephraim London:

Thank you, sir.