Slochower v. Board of Education of New York

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 due process. 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 sinister meaning 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 of guilt 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' minds because the employer was a local government institution and Slochower was a public employee responsible for molding young minds. Clearly there was an underlying assumption of guilt in these justices' minds, just as there had been in 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 about themselves or to "name names" of others with possible communist connections. HUAC and the communist witch hunt reached their zenith just as Slochower was called 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.