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

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 violation of 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 screened the 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 discharge under 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 of the 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 York courts 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 upheld both 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 school room. 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 not thereby denied the right of free speech and assembly." No one has a right to public 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 disqualified simply 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. In effect, 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 think about, 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 even be 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 are entitled to it; and none needs it more than the teacher.