Slochower v. Board of Higher Education of New York City

PETITIONER: Harry Slochower
RESPONDENT: Board of Higher Education of New York City
LOCATION: Brooklyn College

DOCKET NO.: 23
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Oct 18, 1955 / Oct 19, 1955
DECIDED: Apr 09, 1956

ADVOCATES:
Daniel T. Scannell - for the appellee
Ephraim London - for the appellant

Facts of the case

New York City municipal charter provision §903 required discharge of any municipal employee who invokes the Fifth Amendment protection against self-incrimination in a legally authorized inquiry into that employee’s official conduct. Harry Slochower, a tenured professor at Brooklyn College, invoked this privilege in a congressional committee investigation into his past Communist Party membership. Despite his tenured status, which required notice and a hearing before termination, the city terminated him immediately. The state trial court dismissed a motion to review the discharge and the Court of Appeals of New York affirmed.

Question

Does §903 violate Due Process by denying notice or a hearing before discharge?

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

Audio Transcription for Oral Argument - October 19, 1955 in 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

Earl Warren:

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

Mr. London.

Ephraim London:

This case is an appeal from the -- the decision of the New York Court of Appeals.

It involves the constitutionality of New York City Charter Section 903, that's the same statute that was considered by the Court in the Regan case.

The Court did not pass on the constitutionality of the statute in that case or at least the problems that are here presented were not presented in the Regan case.

The question before the Court is simply whether a State can pass a law forbidding its employees to invoke a constitutional right in a federal proceeding or whether it can pass a law providing for the discharge of public employees who invoke the Fifth Amendment right against self-incrimination in a federal proceeding.

Felix Frankfurter:

The matter -- what the matter is the question is narrowed on that?

Ephraim London:

I don't think it is, Your Honor.

Felix Frankfurter:

Well, you just suggest employees in the abstract, all sorts of employees?

Ephraim London:

We have -- we have a specific employee, Your Honor, a --

Felix Frankfurter:

A specific class of the employee, (Inaudible) that it's all teachers.

Ephraim London:

This is one teacher.

Felix Frankfurter:

One teacher?

Ephraim London:

Yes, Your Honor.

Felix Frankfurter:

Only one (Inaudible)

Ephraim London:

I haven't raised the question of academic freedom --

Felix Frankfurter:

All right.

Ephraim London:

-- on this appeal.

I don't think it's necessary that the -- the statute provides, suffice its relative to the issues in this case that if any employee of the city before any legislative committee refuses to testify regarding official conduct on the ground that his answer would tend to incriminate him, his term or tenure of office would terminate.

Then the statute goes on and say that he shall not be eligible to election or appointment but any other office or employment under the city or any other agency.

In short, where the federal employee invokes his constitutional right in a federal proceeding, he is not only dismissed but he cannot thereafter hold city office either elective or appointive.

Have they passed on (Inaudible)

Ephraim London:

I didn't answer that, Your Honor.

I think in the reply brief and that I -- I think it completely answered it if the one -- one short answer to that is that the court below considered it to pass on the question.

Could define and what for?

Ephraim London:

If I may read, Your Honor, I'm reading now from the decision of the Appellate Division that's on the record at page 50 and the Court there says, "The Charter provision does not abridge the constitutional privilege against self-incrimination".

Now, going on to the Court of Appeals, the minority opinion, I'm reading now from page 61."

All sides concede that aside from the supposed applicability of Section 903, the teachers could not be deprived of there positions the exercising their Fifth Amendment right citing matter of grave."

I'd like to come back to that citation in just a moment.

Now, going back to the majority opinion in the Court of Appeals and I'm reading from page 56 of the record.