Slochower v. Board of Education of New York

Appellant
Harry Slochower
Appellee
Board of Higher Education of the city of New York
Appellant's Claim
That a provision of the city's charter prohibiting the use by employees of the Fifth Amendment privilege against self-incrimination violated his due process rights.
Chief Lawyer for Appellant
Ephraim S. London
Chief Lawyer for Appellee
Daniel T. Scannell
Justices for the Court
Tom C. Clark (writing for the Court), John Marshall Harlan II, Stanley FormanReed, Sherman Minton, Earl Warren
Justices Dissenting
Hugo Lafayette Black, Harold Burton, William O. Douglas, Felix Frankfurter
Place
Washington, D.C.
Date of Decision
9 April 1956
Decision
The Supreme Court found the provision unconstitutional.
Significance
The closeness of the vote shows how the justices have been influenced by politics and current affairs. The provision in question clearly was unconstitutional, making employment conditional upon surrender of a constitutional right.
Harry Slochower was a tenured professor at Brooklyn College, an institution administered by New York City, when he was called before the Senate Subcommittee on Internal Security. It was 1952, the height of the Red Scare and anti-communist paranoia that later settled into a Cold War. Slochower told the committee that he was not himself a communist. The committee was interested in finding out if he knew others who were. Slochower was willing to answer questions about those he had associated with since 1941. About the period prior to 1941, however, he declined to testify, invoking his Fifth Amendment privilege against self-incrimination.
Shortly after his appearance before the committee, Slochower received word that he had been dismissed from his job "pursuant to the provisions of Section903 of the New York City charter." Slochower's tenure meant that he could only be fired for cause, and only after a hearing and an appeal. Section 903 ofthe city charter, however, made refusal to testify about matters related to official conduct equivalent to a resignation. In effect, Slochower had been forced to resign for asserting his constitutional rights.
Slochower pursued his case through the New York courts, to no avail. He thenappealed to the U.S. Supreme Court.
Court Upholds Privilege Against Self-Incrimination and Reinstates Professor
The Court found the charter provision used to dismiss Slochower unconstitutional and the manner in which he had been let go an arbitrary violation of dueprocess. Writing for the Court, Justice Clark observed that the charter provision had converted the privilege against self-incrimination into a presumption of guilt:

[W]e must condemn the practice of imputing a sinistermeaning to the exercise of a person's right under the Fifth Amendment. The right of an accused person to refuse to testify . . . was so important to our forefathers that they raised it to the dignity of a constitutional enactment .. . The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession ofguilt or a conclusive presumption of perjury.

It seemed a simple enough case. And yet Slochower won his victory by the narrowest of margins: one vote. The dissenters focused on Slochower's duty of loyalty to his employer and on the employer's right to protect itself. This right of self-protection seemed to loom especially large in the dissenters' mindsbecause the employer was a local government institution and Slochower was apublic employee responsible for molding young minds. Clearly there was an underlying assumption of guilt in these justices' minds, just as there had beenin those of the members of the board who fired Harry Slochower.
By the time Slochower was called before the Senate committee, the board had known for at least a dozen years about his pre-1941 Communist Party affiliation. In retrospect, his fate appears to be much like that of suspected "Fifth Amendment Communists" called before the House Un-American Activities Committee(HUAC) who lost their positions after they failed to answer questions aboutthemselves or to "name names" of others with possible communist connections.HUAC and the communist witch hunt reached their zenith just as Slochower wascalled to testify. In 1954, the witch hunt lost much of its momentum when Senator Joseph McCarthy, who had made a name for himself by employing HUAC methods, was publicly discredited. Plainly, however, feelings about communist infiltration of American society still ran high for some time afterward--even among members of the nation's highest judicial tribunal.
Related Cases

• Adler v. Board of Education, 342 U.S. 485 (1952).
  
• Ullmann v. United States, 350 U.S. 422 (1956).

The Fifth Amendment
In the popular culture, particularly on television, the Fifth Amendment is best-known for its association with persons on trial "taking the Fifth," or refusing to testify against themselves. This right against self-incrimination--"No person . . . shall be compelled in any criminal case to be a witness against himself"--is just one of the many rights contained in the amendment, which was added to the Constitution along with nine others in the Bill of Rightsin 1791.
Among the other significant rights contained in the Fifth Amendment are the prohibition of "double jeopardy," meaning that no one can be tried twice for the same crime. The Fifth Amendment also provides that a civilian accused of a"capital or otherwise infamous crime" has a right to indictment by a grand jury; and it protects citizens from seizure of property "for public use, without just compensation."
Sources
Hurwitz, Howard L. An Encyclopedic Dictionary of American History. NewYork: Washington Square Press, 1974.