Adler et al. v. Board of Education of the City of New York

Appellants
Two parents of school children, and four teachers
Appellees
New York City Board of Education
Appellants' Claim
The Supreme Court should invalidate the Feinberg Law, which declared it illegal for school teachers to "advocate, advise, teach, or embrace" the overthrowof the government by force and violence.
Chief Lawyer for Appellants
Osmond K. Fraenkel
Chief Lawyer for Appellees
Michael A Castaldi
Justices for the Court
Harold Burton, Tom C. Clark, Robert H. Jackson, Sherman Minton (writing for the Court), Stanley Forman Reed, Fred Moore Vinson
Justices Dissenting
Hugo Lafayette Black, William O. Douglas, Felix Frankfurter
Place
Washington, D.C.
Date of Decision
3 March 1952
Decision
The Court affirmed lower court rulings that the Feinberg Law was constitutional.
Significance
The decision upheld New York's right not to hire teachers belonging to subversive organizations. In fact, no one ever was denied a job or fired on these grounds. Nevertheless, a later court found the same New York law in violationof the First Amendment (Keyishian v, Board of Regents, 1967).
In the early 1950s, during the Cold War with the Soviet Union, the Supreme Court decided a number of cases concerning the constitutional rights of Communists and others seeking to overthrow the government by force and violence. Adler was the first case to consider programs that monitored or screenedthe loyalty of public school teachers.
For a number of years, New York's Civil Service Law had barred public employment to anyone "advocating the overthrow of the Government by force, violence,or any unlawful means." Another section of the law disqualified any member of a "society or group" that taught or advocated such action. In 1949, the Feinberg Law authorized the state board of regents to implement the rules by drawing up a list of subversive organizations. Feinberg required public hearings, subject to judicial review, both to list an organization and also to deny employment to an individual.
When the case was brought, no one had been fired or threatened with dischargeunder the Feinberg Law. A group of taxpayers, parents, and teachers had sued, asking that the law be declared unconstitutional before it was implemented(a so-called "declaratory judgement"). They argued that the Feinberg Law would intimidate public school employees. Hence it would limit their exercise ofthe First Amendment right to free speech. (The Court in earlier cases had incorporated the First Amendment into the Fourteenth Amendment, which forbids states from depriving anyone of "liberty" without "due process.") When New Yorkcourts had ruled against the Adler group, it appealed to the Supreme Court.
By a vote of 6-3, the Court affirmed the state court rulings. It thus upheldboth the standards and the procedures imposed by the Feinberg Act. Justices Black and Douglas dissented on the case's merits. Justice Frankfurter dissented on a procedural matter.
Justice Minton wrote for the majority. Minton referred back to Gitlow v. New York (1925) in upholding disqualification of persons advocating violent overthrow. He cited Garner v. Board of the Public Works of the City of Los Angeles (1951) in upholding ineligibility because of membership in a subversive organization. These cases had affirmed the legitimacy of investigating past conduct and past loyalty as qualifications for public employment.
Good conduct and loyalty, Minton continued, are especially desirable in public school teachers:

A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern.

New York has a legitimate police power "to protect the schools from pollution."
Just because someone is disqualified from employment as a teacher, "he is notthereby denied the right of free speech and assembly." No one has a right topublic employment. A person remained free under this law to say and do whatever he wants--so long as he did not seek to be a public school teacher.
Minton also found nothing wrong with the rule that a person was disqualifiedsimply for belonging to a listed organization. The New York courts had held that a person would be ineligible only if he knew about the organization's purpose. It is reasonable to assume, Minton wrote, that "the member by his membership supports the thing the organization stands for, namely, the overthrow of government by unlawful means."
Justice Frankfurter dissented on procedural grounds. The New York system would be governed by administrative regulations that had not yet been written. Ineffect, the Court was being asked to "adjudicate claims against its constitutionality before the scheme has been put into operation."
Justices Black and Douglas dissented on First Amendment grounds. Justice Black declared that, under the First Amendment,

public officials cannot be constitutionally vested with powers to select the ideas people can thinkabout, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such power are not public servants; they are public masters.

Justice Douglas asserted the Feinberg Law was based on guilt by association.A teacher could be disqualified for employment because of membership in an organization found to be "subversive." But this determination was made at a proceeding "to which the teacher is not a party" and at which she might not evenbe present. Douglas also dissented on the broader grounds that the First Amendment requires absolute freedom of speech.

The Constitution guarantees freedom of thought and expression to everyone in our society. All areentitled to it; and none needs it more than the teacher.

Related Cases

• Gitlow v. New York, 268 U.S. 652 (1925).
  
• United Public Workers v. Mitchell, 330 U.S. 75 (1947).
  
• Garner v. Board of Public Works of the City of Los Angeles, 341 U.S. 716 (1951).
  
• Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).

The Feinberg Law
New York state's Feinberg Law, passed in 1949, was a product of post-World War II fears concerning the spread of Communism and "subversion." It was designed to aid in the enforcement of two earlier laws, one passed in 1917--duringan earlier "Red Scare," brought on by the victory of Communism in Russia andthe spread of Communist sympathies among workers in the United States--and the other in 1939.
The 1917 statute designated "the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act" an offense forwhich an employee of the state's public school systems could be dismissed. Asfor the 1939 law, it made any person who called for the overthrow of the government by force, or who published material advocating such overthrow, or whoorganized or joined any society advocating such overthrown, ineligible for employment in the state's civil service or educational systems.
Under the Feinberg Law, the State Board of Regents was charged with implementing rules to govern the dismissal and ineligibility requirements of the two earlier statutes. Likewise the Board was required to identify all subversive organizations operating in the state, and to establish rules whereby membership in any such organization was grounds for disqualification or dismissal fromany job in the state's public school system.
Though it applied to the state as a whole, the Feinberg Law was in fact directed toward that part of the state most likely to draw radicals: New York City. During the next several years, hundreds of teachers in the city resigned; then in 1956, the state's education commissioner issued a new order which madeit possible for persons who had formerly--but not currently--been members ofsubversive organizations to retain their jobs. With its decision in Keyishian v. Board of Regents of the University of the State of New York (1967), the U.S. Supreme Court invalidated the 1917 and 1939 laws, and in effect overruled Adler.
Sources
Folts, James D. History of the University of the State of New York and theState Education Department, 1784-1996 (1996). http://unix2.nysed.gov.