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Civil Rights And The Public Employee. An Analysis Of Legal Protections Available To Public Employees Dismissed Or Facing Dismissal

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Civil Rights And The Public Employee. An Analysis Of Legal Protections Available To Public Employees Dismissed Or Facing Dismissal

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Content CIVIL RIGHTS AND THE PUBLIC EMPLOYEE.
AN ANALYSIS OF LEGAL PROTECTIONS
AVAILABLE TO PUBLIC EMPLOYEES
DISMISSED OR FACING DISMISSAL
by
Charles Frederick Weymann
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(Political Science)
August 1970
71-7748
WEYMANN, Charles Frederick, 1930-
CIVIL RIGHTS AND THE PUBLIC EMPLOYEE.
AN ANALYSIS OF LEGAL PROTECTIONS AVAILABLE
TO PUBLIC EMPLOYEES DISMISSED OR FACING
DISMISSAL.
University of Southern California, Ph.D.,
1970
Political Science, general
University Microfilms, Inc., Ann Arbor, Michigan
Copyright by
CHARLES FREDERICK V/EYMANN
1971
THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED
UNIVERSITY O F SO U TH ER N CALIFORNIA
THE GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES. CALIFORNIA 9 0 0 0 7
This dissertation, written by
Char 1 es Frederick. Wejm.ann.......
under the direction of h%3.... Dissertation C o m
mittee, and approxH’d by all its members, has
been presented to and accepted by The G ra d u
ate School, in partial fulfillment of require
ments of the deyree of
D O C T O R O F P H I L O S O P H Y
D a t e . . ^ . ^ 3. ^ 1 .??.0...
DISSERTATION COM M ITTEE ^
f t < 2
r r 0 Chairm an
TABLE OF CONTENTS
Chapter Page
I. THE PROBLEM, ITS DEVELOPMENT AND
CURRENT TRENDS ........................... 1
A Right to Government Employment?
The Role of the Executive in Dismissals
The Basic Judicial Questions
The Role of the Judiciary
Suggestions for a New Judicial Approach
II. THE STATUS OF THE FEDERAL EMPLOYEE AND
PROTECTION AGAINST ARBITRARY DISMISSAL ... 48
The Hatch Act and Political Activity
Purposes and Provisions of the Hatch
Act and Related Statutes
Cases Challenging Constitutionality
of the Hatch Act
Security and Loyalty Programs and
Dismissal of Government Employees
Historical Development and
Statutory Provisions
The Truman Loyalty Program
The Eisenhower Security Program
Department of Defense Security Program
The Port Security Program
Cases and Precedents Arising under the
Security and Loyalty Programs
The Early Cases
The Bailey Case
The Supreme Court Cases
The Lower Federal Court Cases
Summary and Evaluation of Loyalty
and Security Program Cases
Cases Involving Dismissal of Employees
of Private Contractors Doing Business
with the Federal Government
The Port Security Cases
The Classified Information Cases
ii
Chapter Page
Access to a Military Installation
Conclusions from Cases Involving
Dismissal of Employees of Private
Contractors
III. DISMISSAL OF EMPLOYEES OF STATE AND LOCAL
The Federal System and Due Process
The Development of Due Process
Dismissal of State Employees
Dismissals Involving Abridgment of
First Amendment Freedoms
Dismissals of State Employees under
the Hatch Act
Dismissals of State Employees Other
Than under the Hatch Act
Dismissals Involving Abridgment of
Due Process
Conclus ions
Right to Employment
Tenure and Academic Freedom and the
"Special Status" of Teachers
The Teacher as a Public Employee.
Grounds for Dismissal
Dismissals Involving the Morality
of the Teacher
Dismissal for Public Criticism of
Superiors
Disloyalty as Grounds for Removal
Dismissals Because of Political
Associations
Dismissals for Invoking the Fifth
Amendment Protection Against Self-
Incrimination
Dismissal for Refusal to Take a
Loyalty Oath
V. SUMMARY, PROJECTIONS, CONCLUSIONS ........ 201
Grounds for Extension of Protections
to Federal Employees
Bases for Challenge of the Hatch Act
GOVERNMENTS 121
IV. LEGAL ISSUES IN TEACHER DISMISSALS 148
BIBLIOGRAPHY 226
iii
CHAPTER I
THE PROBLEM, ITS DEVELOPMENT
AND CURRENT TRENDS
An analysis of United States Supreme Court decisions
of the period since the end of World War II shows one
particular issue has been clearly dominant. It is the
conflict arising when the civil rights of the individual
are asserted against the right or necessity of governmental
infringement of those rights in order to protect the rights
and welfare of society as a whole. Overwhelmingly, the
trend has been to uphold the basic rights of the individual
against government encroachment.^ Concurrent with this
1. See, for example, Robert G. McCloskey, The
American Supreme Court (Chicago: University of Chicago
Press, I960;, especially Chapter 7; Robert H. Jackson,
The Supreme Court in the American System of Government,
(Cambridge, Mass.: Harvard University Press, 1965), pp. 75-
82; and Jack W. Peltason, Federal Courts in the Political
Process (Garden City, New York: Doubleday and Co., 1955),
81 pp.
Illustrative of the trend suggested are the follow
ing significant decisions: Mapp v. Ohio, 367 U.S. 643
(1961), which made binding on the States the Federal rules
regarding admissibility of evidence: Gideon v. Wainwright,
373 U.S. 335 (1963), which extended the guarantee of right
to counsel to State criminal proceedings; Malloy v. Hogan,
378 U.S. 1 (1964), which extended the Fifth Amendment pro-
tection against self-incrimination to criminal proceedings
before State Courts; and Escobedo v. Illinois, 378 U.S.
478 (1964), and Miranda v. Arizona, J84 d.S. 436 (1966),
both of which extended to pretrial procedures a number of
protections formerly available only at the trial itself.
1
2
judicial trend, the number of people employed by the
Federal government has increased dramatically, so that at
present more than 2,500,000 are employed directly by the
Federal government.
Yet, "the Federal government, emerging this century
as the guarantor of the liberty of its citizens, retains a
curious insensitivity to the rights of those citizens whom
it employs.This same assertion is made by Thurman
Arnold, who suggests that Federal employees enjoy only the
shadow, and not the substance, of protection that is ac
corded to the ordinary citizen.^ Both of these writers, as
well as others who assert a denial of basic rights to pub
lic employees, admit that certain limitations on their
rights are accepted by the individual in accepting govern
ment employment. "But at the same time there is no reason
to embrace the view that a public employee should not have
any protection simply because he is a public employee.
It is the purpose of this dissertation to analyze
2. "Dismissal of Federal Employees--The Emerging
Judicial Role," Columbia Law Review, LXVI, No. 4 (April,
1966), p. 719.
3. Thurman Arnold, Fair Fights and Foul (New York:
Harcourt-Brace, 1956), Chapter 16.
4. Maheshwar Nath Chaturvedi, "Legal Protections
Available to Federal Employees Against Wrongful Dismissal,"
Northwestern University Law Review, LXIII, No. 3 (Julj-
August, 1968), p. 288.
3
the nature and extent of this problem of the denial of
basic constitutional rights to government employees dis
charged or facing discharge. This discrepancy, when com
pared to the extension of protections to the individual
facing criminal prosecution, is referred to by Michael
Slotnick as "The Great Dichotomy." Slotnick uses this
phrase because of his conviction that
for the most part, when the courts uphold the
dismissal of an employee, they do so as against
the constitutional arguments of the First, Fifth,
and Sixth Amendments; however, when the courts do
apparently become so appalled by the arbitrariness
of the dismissal that they desire to invalidate
the dismissal, they do so by a process of statu
tory interpretation and have steadfastly adhered
to the principle of avoiding the constitutional
issue. ^
In order to analyze the validity of these assertions,
it will be necessary to first explore several general areas.
These will include analysis of the constitutional provi
sions, statutes, and ordinances stipulating the rights and
protections enjoyed by government employees, both as em
ployees and simply as citizens; and primarily, an analysis
of spec ^fic court decisions in order to identify the degree
to which the courts have or have not accorded government
5. Michael C. Slotnick, "The Anathema of the
Security Risk: Arbitrary Dismissal of Federal Civilian
Employees and Civilian Employees of Private Contractors
Doing Business with the Federal Government," University of
Miami Law Review, XVII, No. 1 (Fall, 1962), p. 26.
4
employees the protection of asserted constitutional rights.
The first major instances of court failure to accord
constitutional protection arose in connection with dismis
sals under various loyalty and security programs, programs
reaching their height in the 1940's and 1950's. This phase
will be considered in detail in Chapter II. More recently,
the emphasis has shifted to cases where dismissals have
been challenged as violating First Amendment rights of
freedom of speech, association, and right to petition.
Many of these raise the specific issue of academic freedom
versus State interest in regulating the activities and
qualifications of teachers. These issues will be con
sidered primarily in Chapter IV.
The major concern, once having identified the con
stitutional and statutory framework within which the
government operates when dismissing employees, will be to
consider the constitutional issues. This will in turn
involve an understanding of the concepts and development of
due process of law and its particular relation to the pro
visions of the First, Fifth, and Sixth Amendments. Also
involved will be a consideration of the status of the em
ployees of State and local governments, and the extent to
which such employees are affected by and protected by
Federal Constitutional guarantees. This will involve not
only the issue of the individual's constitutional rights,
but also the basic issues raised by the existence and
5
operation of the Federal system.
Some explanation regarding the organization of the
study should also be made. Even though the major concern
will be with civil rights and basic constitutional issues,
the dissertation will be organized around basic topics and
categories, such as the Loyalty and Security Programs;
rights of employees of private contractors doing business
with the Federal government; and rights of employees of
State and local governments, including police officers and
teachers. This organization was chosen in preference to
another possible approach, that of isolating the specific
constitutional issues raised under the First, Fifth, and
Sixth Amendments, for the reason that it proved impossible
to separate and isolate completely the constitutional
issues. They are present and interrelated in all the cases
to be examined, and moreover, may be identified only by
analyzing specific decisions in cases arising in connection
with these different categories.
Before investigating the specific rights of govern
ment employees guaranteed by constitutional and statutory
provisions, a few other general observations need to be
made. One of these is that, even if absolute judicial
protection of all legal and constitutional rights of the
employee dismissed by the government might be assumed,
most individuals who wish to contest their dismissals are
virtually excluded from doing so because of the remoteness
of judicial recourse. It has been suggested by one writer
that for those who can manage, "political intervention
would prove the most effective. But since this remedy is
available only to a few fortunate persons, for most govern
ment employees, the courts seem to be the only place to
obtain relief."® However, judicial recourse is doubly re
mote, for precedent has established that only the District
Court for the District of Columbia has the authority to
order reinstatement of an illegally removed or separated
employee.^ That this works to the disadvantage of many
discharged employees is evident when it is realized that
in 1960, of 11,800 discharged from Federal employment, only
688 worked in the District of Columbia area, and of 19,000
separated because of reduction in work force, only 425
worked there.® Further, virtually the only recourse other
than fighting the discharge through judicial proceedings
is to bring action in the Court of Claims for monetary
damages, but here judgment for the employee does nothing
to effect reinstatement. After observing that in 1959 and
6. Chaturvedi, op. cit., p. 307.
7. Palmer v. Walsh, 78 F. Supp. 64 (D.C. Ore.1948);
Payne v. McKee, 153 F. Supp. 932 (E.D. Va. 1957).
8. Office of Employment Statistics, United States
Civil Service Commission, 1961.
7
1960 more than 78,000 employees were dismissed or sepa
rated, Cornelias Murphy concludes that "because of the
difficulty in obtaining judicial review of these actions,
their legality will, in many cases, go unchallenged."9
A Right to Government Employment?
One vital question which must be considered pre
liminary to analysis of the issues arising in the specific
categories indicated is whether or not there exists a right
to government employment.10 If it can be successfully
argued that it is a right, then it follows that as a right
it must be fully protected, if necessary through invoking
other Constitutional rights. If, however, as is generally
accepted, government employment is a privilege rather than
a right, it is logical and reasonable to assume that cer
tain conditions may be placed on such employment, and the
questions then become whether the conditions are reason
able, and whether dismissals involve a denial of rights
which are specifically guaranteed by the Constitution.
One of the first, and perhaps clearest, judicial
statements on this subject came from Justice (then Judge)
9. Cornelius F. Murphy, Jr., "Judicial Review of
the Removal of Federal Employees: A Re-examination," The
Federal Bar Journal, XXII, No. 1 (Winter, 1962), p. 25.
10. A more detailed analysis of some cases in which
this was an issue will also be undertaken in later sec
tions .
Holmes in his opinion in McAuliffe v. Mayor and Board of
Aldermen, City of New Bedford,^ in which the court upheld
the discharge of a police officer for soliciting funds for
political purposes. The court, through Holmes's opinion,
asserted that public employees must accept employment on
the terms offered. In Holmes's words:
The petitioner may have a constitutional right to
talk politics, but he has no constitutional right
to be a policeman. There are few employments for
hire in which the servant does not agree to sus
pend his constitutional rights of free speech, as
well as of idleness, by the implied terms of the
contract. The servant cannot complain, as he takes
the employment on the terms which are offered him.
On the same principle, the city may impose any
reasonable condition upon holding offices within
its control. ^
This statement, taken from a relatively obscure 1892
Massachusetts case, has been justified, widely applied,
variously interpreted, and vigorously criticized. It has,
1 ^
according to Peter Marx, J been generally interpreted to
mean not simply that an employee's activities may be re
stricted for the purpose of promoting an efficient public
service, but to further imply that "a policeman may be
required to refrain from talking politics in order to
11. 155 Mass. 216, 29 N.E. 517 (1892).
12. 155 Mass. 216 (1892) at 220.
13. Peter Marx, "Civil Servants and the First
Amendment," Intramural Law Review, XXII (1966-67), New
York University School of Law, !T?-78.
retain his job.^ It is Marx's assertion that such an
interpretation goes far beyond what Holmes probably in
tended, but that, regardless of intent, such an interpre
tation has often been relied upon, both in relation to
• < 1 £
dismissal of Federal employees^ and State employees.
Reliance on this particular opinion to support the
argument that public employment is a privilege rather than
a right is further curious since, as Chaturvedi points out
nowhere in his opinion does Holmes specifically consider
the concept and issues of the privilege argument, and he
suggests that the decision could as well have been reached
on grounds that a civil servant may not engage in poli-
17
tics.
A further question may be raised. Granted the
validity of the privilege argument, may it then justify
even arbitrary dismissal as well as dismissal for failure
to meet certain specified terms of employment? The fact
that McAuliffe has been invoked to justify arbitrary
14. Ibid., p. 59.
15. See Bailey v. Richardson, 341 U.S. 918 (1951),
which is analyzed at pp. 81-87, infra.
16. See, among others, Coleman v. School District
of Rochester, 183 Atl. 856 (1936) . See also "Constitution
ality of Efforts to Dismiss Public School Teachers for
Loyalty Reasons," Marquette Law Review, XLII, No. 2 (Fall,
1958), pp. 215-36.
17. Chaturvedi, op. cit., p. 317.
10
dismissals as recently as 1951 has drawn strong condemna-
18
tion. "The notion that serving the master, in this case
the Government, is a privilege, and that therefore the mas
ter may treat his servant as he likes, is completely
foreign to a republican and democratic system of govern
ment."^ The extent to which the courts still accept or
have departed from this principle will be traced later in
this Chapter, and further in Chapters II, III, and IV.
The Role of the Executive in Dismissals
A second major background topic is the role of the
executive in dismissal of public employees, for it is
necessary to understand the nature and extent of the execu
tive power to dismiss before the judicial role may be
analyzed.
The Constitution itself gives little guidance re
garding executive dismissal of Federal employees, being
20
primarily concerned with the power of appointment. That
dismissal of government employees was basically an executive
function was early established, and this precedent has re
stricted court attempts to set limits on executive action.
18. Bailey v. Richardson, 341 U.S. 918 (1951).
19. Chaturvedi, op. cit., p. 317.
20. United States Constitution, Art. Ill, Sec. 2.
11
Often cited as the precedent case in this area, and also
as the "clearest statement of the rule of unlimited execu
tive discretion . . ."21 Myers v. United States.^ The
basic issue in Myers was whether the executive had the
power to dismiss a local postmaster, appointed with the ap
proval of the Senate, absent a statute governing such dis
missal. The Court, in upholding executive dismissal, based
its decision on the assertion that the power to dismiss was
inherent in the executive function; to hold otherwise would
undermine the authority of the executive. The Court ex
pressly rejected the argument that such executive dis
cretion would reinstitute the spoils system.
However, Myers has not in practice been invoked to
justify absolute discretion to dismiss all employees.
Although Congress, and, by inference, the Courts
should be unable to question dismissal of govern
ment officials who directly affect the adminis
tration of a law, a limit upon absolute executive
removal power seems to emerge from an examination
of the abuses which the Court, through its decision
in the Myers case, sought to prevent.23
The Court, then, is seen as exercising a legitimate role
in restricting absolute discretion by the executive in
21. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 730.
22. 272 U.S. 52 (1926).
23. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 731.
12
cases where employees are not directly involved in deci
sions having an impact on policy or the administration of
law.
Despite this line of reasoning, however, Myers has
been generally given a narrow interpretation which has
limited its impact, and the courts have in general re
frained from granting judicial review of executive employ
ment decisions. For example, in Keim v. United States,^
the Court refused to review the merits of a supervisor's
decision to dismiss an employee on grounds of "ineffi
ciency." The Court declined to inquire into the actual
work performed by the employee, and observed that the
plaintiff had presented no specifics except the accusation
that the supervisor had misinterpreted clearly relevant
evidence which was available to him through both personal
observation and the reports of his subordinates. Further,
25
in Eberlein v. United States, the Court concluded that
judicial decision should not be substituted for a decision
made in "good faith" by the administration, and that an
administrative decision following adequate procedures and
reasonably related to actual employment performance may be
constitutionally unreviewable.
24. 177 U.S. 290 (1900).
25. 257 U.S. 82 (1921). This case is analyzed more
fully at pp. 27-29 infra.
13
Analysis of these decisions reveals, however, that
there are areas and conditions of executive dismissal which
are not excluded from judicial action. The decisions cited
assumed that the dismissal had been made in "good faith,"
based on relevant data, and involved "sensitive" positions.
This could imply that the courts might consider as review-
able dismissals made on the basis of personal dislike or
bias, where the issue would not be review of on-the-job
performance, but rather one of rational judgment on the
part of the administrator. Further, a requirement that the
"facts upon which administrative judgments operate bear a
reasonable relationship to the ultimate decision would
seem to be reconcilable with proper regard for administra
tive expertise and discretion."26
One of the major criticisms of the courts and of
their role in the cases involving dismissal of government
employees is that they have extended too far the doctrine
of absolute executive discretion in dealing with sensitive
positions, and have interpreted the rule to include all
government positions. One suggested measure of control
would be for the courts to apply the "reasonableness" test
to the executive, as it has been applied to the legisla
ture.
26. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 733.
14
If a government official's naked denial that his
action was arbitrary can foreclose review--if no
opportunity is provided for the aggrieved party
to establish that a decision has been based on
irrelevant considerations--there can be no en
forceable limitations upon governmental control
of a huge body of Federal employees.27
One possible basis for judicial limitation on execu
tive discretion has emerged from Scott v. M a c y . ^ 8 in which
the plaintiff, an applicant for employment with the Depart
ment of Agriculture, was granted a position subject to
further investigation into his background and qualifica
tions. He was questioned regarding two early arrests which
he satisfactorily explained, but he declined to answer
questions regarding an arrest and police investigation on
the possibility of being a homosexual on the grounds that
such a topic is "not pertinent insofar as job performance
is concerned."^9 Following his dismissal for immoral con
duct, plaintiff requested specification of the grounds for
dismissal and the criteria used to determine what consti
tuted immoral conduct. He was informed that his record
"disclosed convincing evidence" that he was a homosexual,
a status "which is considered contrary to generally recog
nized and accepted standards of morality.
27. Ibid., p. 738.
28. 349 F. 2nd 182 (D.C. Cir. 1965).
29. Ibid., at 183.
30. Ibid., at 183.
15
In reversing the dismissal, the court, in an opinion
by Judge Bazelon, held that the Civil Service Commission
must specify the behavior it found immoral, and "state why
that conduct related to 'occupational competence or
fitness. "'31 -^he court further and more importantly held
that the plea by counsel for the government that dismissal
was exclusively an executive prerogative, absent any appli
cable statute or regulation to the contrary, was too broad,
for the Constitution provides both applicants and employees
with "equal protection against arbitrary or discriminatory
treatment by the government."^ Moreover, disqualification
from Federal employment under circumstances where the
causes were not specified jeopardized the ability of the
person dismissed to find another job, for he was "stig
matized" by such disqualification.
This concept of stigma could, however, be a factor
in severely limiting the application of Scott v. Macy, for
if stigma must be demonstrated before any dismissal may be
considered arbitrary, a far greater burden falls on the em
ployee. "if the central concern of the reviewing court is
to be solely 'the right to be free from government defama
tion,' an equally arbitrary dismissal for which no specific
31. Ibid., at 185.
32. Ibid., at 184.
16
reason is given would seemingly be unimpeachable."33 in
Scott v. Macy, Judge Bazelon required the Civil Service
Commission to not only reveal the bases for its determina
tion that the employee had engaged in "immoral conduct,"
but also to show the relationship of such conduct to the
agency goal of ensuring occupational competence and fit
ness. As derived from the decision, then,
implicit in the standard of arbitrariness by which
all government action must be tested would seem to
be the view that employment decisions are to be
made on the basis of relevant data; behavior pat
terns, racial traits, or political views . . .
could not serve as qualifications for employment
or reasons for dismissal unless an affirmative
showing could be made that a relationship existed
between this data and the legitimate purposes of
the decision-making p r o c e s s .34
Certain conclusions may be drawn from decisions in
volving executive discretion in dismissal of government
employees, and from the various analyses of these decisions.
One is that judicial failure to distinguish between differ
ing employment problems encouraged continued adherence to
the rule of unrestricted or only slightly restricted execu
tive discretion. Second, there is a need to distinguish
more clearly between policy-making and other sensitive
33. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 739, quoting Scott v. Macy at p. 185.
34. Ibid., pp. 739-40.
17
positions, and positions requiring the performance of only
routine operational tasks. Third, there still exists a
need for judicial recognition of the reviewability of dis
missals on grounds apart from efficiency, or on the basis
of arbitrary action. The judiciary must recognize that
"its previous insensitivity to employee protection is both
undesirable and unnecessary, and that it has the duty to
establish a means of securing at least minimal relief from
arbitrary dismissal."35
The Basic Judicial Questions
These brief considerations of government employment
as a right and of executive discretion in dismissal of
government employees make it clear that significant consti
tutional questions are involved, and that the judiciary
therefore has a role to play in their resolution. It will
be helpful to indicate the basic judicial questions and to
identify guidelines which may be applied by the courts be
fore turning to a more detailed examination of the leading
cases.
The basic constitutional question may be stated
to be that of whether a State or Federal agency
may, like a private employer, hire and discharge
employees at will, absent contractual restrictions,
35. Ibid., p. 741.
18
or whether it is limited in this, as in other
actions, by due process of law.36
This question focuses on the issue of due process, which in
turn calls into issue a number of additional constitutional
provisions which must be explored.
In regard to due process, it can be argued that the
government, when acting as an employer, is not performing
a uniquely governmental function, and that it therefore
should not be limited in its discretion to hire and fire.
On the other hand, it may be just as persuasively argued
that it is impossible to carry out governmental functions
without employees, and that thus employment practices are
an integral part and function of government. "A logical
extension of this argument is that this, as other govern
mental action, is limited by due process."37
If this assumption that employment and dismissal do
in fact constitute an aspect of governmental action is
valid, two situations emerge in which government may be
involved in the matter of employer-employee relations. In
one, government is involved as a third party when it inter
venes in the relations between an employer and a private
36. "The Due Process Clause and Dismissal from
Government Employment," Houston Law Review, II, No. 1
(Spring, 1964), p. 120.
37. Ibid.
19
employee.^® Second, government may be involved as an em
ployer dismissing an employee, in which case its actions
may directly impinge upon constitutionally guaranteed
rights. Here, two circumstances under which an employee
may be dismissed need to be distinguished: first, the em
ployee may be discharged pursuant to a statute calling for
automatic dismissal under certain circumstances; second,
the employee may be dismissed by the executive agency which
exercises discretionary powers and itself initiates ..the
dismissal proceedings.
Relative to these circumstances, several guidelines
have been developed by the courts to determine whether the
dismissal procedures observed due process requirements.
•5Q
One guideline involves questions of national security, 7
and the specific constitutional issue raised in this cir
cumstance is
whether, consonant with the due process clause of
the Fifth Amendment, the Federal government, for
security reasons can, directly or indirectly, in
summary fashion, cause the dismissal of an employee
from a particular position without affording the
employee ample notice or sufficient opportunity
to defend himself.40
38. This specific aspect of government involvement
will be discussed in detail in Section 3 of Chapter II.
39. Decisions in which dismissals on security
grounds have been a major factor will be discussed in
detail in Sections 2 and 3 of Chapter II.
40. Slotnick, op. cit., p. 10.
20
A second guideline is that of arbitrariness on the
part of the government. In applying this concept in some
recent decisions, the courts seem to be gradually aban
doning the precedent that there must be a demonstration of
violation of a specific right to warrant judicial inter
vention, and the emphasis of judicial inquiry has shifted
away from the identification of individual rights to an
41
examination of the reasonableness of governmental action.
The principal concern of the courts in using this approach
has been not with the constitutional rights of the em
ployee, but rather with the provisions for and reasonable
ness of governmental action. This approach assumes that
certain rights are surrendered by the governmental em
ployee, but that a reasonable basis must exist for limita
tions and restrictions on the rights of the individual.
One rule recognized by the courts in allowing such limita
tions is that if the individual is to be restrained, it
must be for the promotion of the efficiency of government
42
service.
41. For an example of this approach, see Wieman v.
Updegraff, 344 U.S. 183 (1952), in which the Court asserted
(at 192) that the due process clause affords protection to
public employees "whose exclusion pursuant to a statute is
patently arbitrary or discriminatory."
42. The question of the "promotion of the efficien
cy of government service" will be considered in Chapter II
dealing with the Hatch Acts and related Civil Service regu
lations .
21
Balancing the rights of the individual against the
interests and needs of government is a third guideline
applied by the courts. The balancing doctrine was employed
43
in United Public Workers v. Mitchell, which involved the
dismissal under provisions of the Hatch Act of an employee
of the United States Mint, who also served simultaneously
as a ward leader of the Pennsylvania Democratic Party. The
Supreme Court in its opinion conceded that the Hatch Act
provisions under which the employee was dismissed did in
fact interfere with the constitutionally guaranteed rights
of free speech and association. But, in asserting that
these rights are not absolute, the Court stated that the
undesirable and restrictive aspects of the act had to be
balanced against the motive of Congress in passing it, and
the benefits achieved from enforcement of the act balanced
against the deprivation of individual rights.
In upholding both the constitutionality of the act
and the dismissal under its terms, the Court ruled that the
restriction on political activity was intended to promote
the efficiency of the executive branch of the government,
a legitimate aim; Congress is thus permitted to regulate
employee behavior "reasonably deemed to interfere with the
efficiency of the governmental service," for due process of
law "should not limit governmental action to the extent
43. 330 U.S. 75 (1947). See Chapter II for analy
sis of the specific issues and interpretations.
22
that it is rendered incapable of functioning for the pro
tection of interests common to all."^ Thus, when govern
ment contends that the restrictive action complained of is
necessary to protect the proper functioning of the govern
ment, and it appears that the action taken has a reasonable
relation to the interest government seeks to protect,
government
should be limited in its actions only by the
standard of reasonableness. ... To determine
in a particular case what action is reasonable,
and thus whether due process has been complied
with, the need of the government to act as it
did should be balanced against the harm resulting
to the individual from the action taken.^
Through a series of decisions the courts have estab
lished a fourth guideline, this one stating that the rela
tionship of the employer to the employee may be the deter
mining factor in whether or not a dismissal violates the
protections of due process. The first case to incorporate
this doctrine involved the dismissal of a clerk to a
Federal judge,^ in which the competence of the clerk was
not disputed. The grounds for dismissal were that the per
son desired to replace the originally appointed clerk was
personally more acceptable to the judge who had made the
44. "The Due Process Clause and Dismissal,"
Houston Law Review, op. cit., p. 125.
45. Ibid.
46. Matter of Henman, 38 U.S. 135 (13 Pet. 230),
1839.
23
original appointment and dismissal. In upholding the dis
missal, the Court asserted that the "person whose function
ing depended on continued confidence in his employee . . .
logically possessed the power to discharge the employee.
A fifth guideline involves a negative rather than a
positive doctrine: court rejection of the assertion that
government employment constitutes a property right which
may be abolished or altered without due process. Rejection
of the doctrine that government employment constitutes a
property right "seems largely based upon fear that recog
nition of an unqualified right to employment would cripple
the ability of the legislative or executive branch to re
spond to political and social change."48 a serious question
as to the validity of this approach may be raised, for the
broad issues of social and political change seldom are
relevant issues in cases involving dismissals; usually the
controversies revolve around the qualifications of a par
ticular employee.
It is evident from this discussion of court-
formulated guidelines that two basic questions regarding
rights of public employees emerge. One centers on the
procedural protections of due process, with the question
47. Ibid.
48. "Dismissal of Federal Employees," Columbia Law
Review, op. cit.. p. 729.
24
being not whether the government may impose reasonable
conditions for employment; court decisions have established
that it unquestionably may. Rather, "the problem is en
countered where the government, trying to impose condi
tions, dismisses an employee without affording him basic
procedural s a f e g u a r d s . " ^ The basic nature of the right to
be protected, then, "is the right of an employee to be free
in his status or relationship from arbitrary governmental
interference, even though the government is the other party
to the relationship.
The second question is even more basic, and in
volves rights protected by the First Amendment: can govern
ment, as a condition of employment, require that the
employee give up or accept restrictions on First Amendment
rights? It is this aspect of the problem which is of in
creasing importance in the more recent cases (to be con
sidered especially in Chapter IV) and which is also the
basis for possible new challenges to the Hatch Acts.
The Role of the Judiciary
Recognizing, then, as established, the principle
that government has a right to impose certain conditions
and restrictions on its employees, but that the employees
49. "The Due Process Clause and Dismissal," Houston
Law Review, op. cit., p. 124.
5°. Ibid., p. 125.
25
also retain certain procedural and substantive rights, it
falls to the judiciary to answer the question: Since con
stitutional guarantees may not be absolute and thus may be
restricted, "what is the nature and extent of the relation
ship that must exist between the restriction on the one
hand, and the employee's 'fitness,' as well as the need or
goal which the restriction is designed to serve on the
other?"51
It is necessary at this point to consider various
attitudes assumed by the courts in attempting to answer
this question, and to trace the development of these atti
tudes .
The one general observation with which virtually
all commentators would agree is that the judiciary has
generally failed to act directly on the constitutional
issues involved. Even where the courts have refused to
uphold a dismissal (and in the vast majority of cases the
dismissals have either been upheld or the courts have
declined even to review them), the refusal to uphold has
been accomplished by "skillfully avoiding the constitu
tional question of whether the employee was 'deprived of
life, liberty, or property without due process of law.'"52
This failure to face squarely the constitutional
51. Marx, op. cit., p. 74.
52. Slotnick, op. cit., p. 11.
26
question has been based largely on the acceptance of the
"purportedly unquestionable axiom" that, "absent a statute
or ancient custom to the contrary, executive offices are
held at the will of the appointing authority, not for life
or for fixed terms."^3 Acceptance of this basic rule has
in the past eliminated the necessity for procedural pro
tections, and curtailed statutory rights, and "has effec
tively insulated the Federal government and the employment
practices of its executive departments from any significant
degree of control. . . ."54
When originally formulated, the rule did not have
the far-reaching implications it now has, for it evolved
both at a time when national security had not become the
pervasive and often emotional issue it became beginning in
the 1950's, and also before techniques of employee surveil
lance had been well developed. Today, however, at a time
"when standard employment procedures apparently dictate
inquiry into personal background and proclivities," the
danger that decisions will be made "on the basis of
innuendo, dubious assessment of moral character, or ques
tionable psychological data has grown alarmingly."55
While agreeing that the judiciary has failed to
53. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 720.
54. Ibid.
55. Ibid.
assert its proper constitutional role in assuring that
dismissed employees are accorded the protections of due
process, Marx and Chaturvedi attribute this failure to
different reasons.
Marx notes that there has been a "marked reluctance"
on the part of the courts "to examine the nature of the
infringement and its relations to the alleged evil. In
stead the courts generally prefer to leave such determina
tions to the discretion of the appointing authority."56
This doctrine, which might be conveniently labeled
the "Doctrine of Executive Discretion," is one of several
the courts have relied upon to avoid a consideration of
constitutional issues. It may be traced back to the first
case to treat the removal of a government employee,
Ex parte Hennan.^? This case was decided during the height
of the spoils system, but established a precedent followed
well after the establishment of civil service regulations
governing dismissals.
The Doctrine of Executive Discretion was "extended
to its limits"^ in the 1921 decision of Eberlein v. United
56. Marx, op. cit., p. 77.
57. 38 U.S. 135 (13 Pet. 230), 1839. See p. 22
supra for fact background.
58. Chaturvedi, op. cit., p. 309.
28
59
States. Eberlein, a storekeeper in the Customs Service,
had been removed on charges of taking money for underweigh
ing cargoes of sugar. He was reinstated two years later by
executive order of the President after investigation had
proven his dismissal unjustified. After his reinstatement
he sought to recover his salary from the date of his re
moval to the date of reinstatement. This was denied when
the Court refused to declare his removal illegal, on the
grounds that at the time of removal "the things required by
law and regulations . . . were done, and the discretion of
the authorized officers was exercised as required by law.
It is settled that in such cases the action of the execu-
60
tive officers is not subject to revision in the courts."
This case underlines the assertion that arbitrary
removal cannot be prevented by merely providing procedural
safeguards if the Doctrine of Executive Discretion is ac
cepted by the courts. In the instant case, the procedures
required by law, namely, informing the employee of the
charges in writing and giving him the opportunity to submit
his answer in writing, were observed. Yet, the dismissal
of an employee, whose innocence was well established and
acknowledged by his reinstatement by Presidential action,
59. 257 U.S. 82 (1921), affirming 53 Ct. Cl. 466
(1918).
60. 257 U.S. 82 (1921), at 84.
29
was nonetheless upheld simply because procedures had been
followed in informing him of and asking him to explain
something he had never done.
Eberlein in turn served as the basis for subsequent
decisions in which the court plead lack of jurisdiction
based on the premise of executive discretion. In Kellom
v. United States,plaintiff, a letter carrier, was dis
missed on the basis of charges brought by the local Post
master. Kellom was subsequently reinstated by executive
order when investigation revealed that the charges on
which the dismissal was based were not true, and that the
charges were, in fact, the result of prejudice on the part
of the Postmaster, and possibly of the post office inspec
tor who conducted the investigation. In answer to plain
tiff's charges that Presidential reinstatement clearly
established his innocence, the court asserted that "juris
diction to consider the truth or falsity of the charges
and weigh the testimony with respect thereto belongs to the
proper department and not to the court."^
Yet another example of judicial abdication to execu-
63
tive discretion is found in Love v. United States. At
61. 55 Ct. Cl. 174 (1920).
62. Ibid., at 179.
63. 108 F. 2nd 43 (8th Cir., 1939).
30
the time of his dismissal, Love was serving on a WPA
project in Minneapolis. He was dismissed because he had
told his superior that so many errors were being committed
as to make the outcome of a survey useless. Instead of
investigating the alleged errors, the superior demanded
Love's resignation; when Love refused to submit it, he was
dismissed, the superior commenting that "this man is not
wanted on this project.In upholding the dismissal,
the court acknowledged that an employee might not be dis
missed "arbitrarily or capriciously." Nevertheless,
it has long been settled law that the power to
make selection or appointment implies the power
to dismiss. . . . The power to dispense with
unneeded or unsatisfactory services must also be
recognized to reside in the same administration.
No power of supervision over such administration
is lodged in the c o u r t s . 65
There is evidence that the courts are now shifting
gradually away from the absolute discretion rule illus
trated in the above cases. Now, "almost all courts are
insisting that the administrative determination satisfy
the substantial evidence rule and be made in good faith."
Indications of this trend are seen in Gadsden v. United
67
States, the court stating that where discretion is
64. Ibid., at 48.
65. Ibid., at 49.
66. Chaturvedi, op. cit., p. 313.
67. 78 F. Supp. 126 (Ct. Cl. 1948).
31
conferred on an administrative officer to render a deci
sion, "this decision must be honestly rendered, and . . .
if it is arbitrary or capricious, or rendered in bad faith,
the courts have the power to review it and set it aside.
A variation of the Executive Discretion Doctrine may
be labeled the "Privilege Doctrine," first established in
69
the McAuliffe decision. Although adhered to through the
Bailey decision in 1951, the trend "has now changed so con
siderably in favor of employees that it is now certain that
they are protected under the due process clause."70
Steps in this change may be traced through a number
of decisions, starting with Garner v. Board of Public
Works,71 with the clearest expression of the change being
found in the concurring opinion of Mr. Justice Frankfurter.
The Constitution does not guarantee public employ
ment. . . . But it does not at all follow that
because the Constitution does not guarantee
public employment, a city or a State may resort
to any scheme for keeping people out of such
employment. ... To describe such employment
as a privilege does not solve the problem.
A further step away from a strict adherence to the
68. Ibid., at 127.
69. See pp. 8-9 supra for facts and analysis.
70. Chaturvedi, op. cit., p. 318.
71. 341 U.S. 716 (1951).
72. Ibid., at 724-5.
32
73
Privilege Doctrine appears in Wieman v. Updegraff, where
the Supreme Court for the first time ruled a statute deal
ing with public employment unconstitutional because of its
arbitrariness. The Oklahoma statute in question required
every State employee to take a loyalty oath, and provided
that any employee who was or had been a member of any
"subversive" or "Communist front organization" within the
preceding five years, was to be dismissed. Knowledge on
the part of the employee regarding the nature of the
organization was immaterial as a protection against dis
missal. In finding the statute unconstitutional, the Court
held that
indiscriminate classification of innocent with
knowing activity must fall as an assertion of
arbitrary power. The oath offends due process.
... We need not pause to consider whether an
abstract right to public employment exists,. It
is sufficient to say that constitutional pro
tection does extend to the public servant whose
exclusion pursuant to a statute is patently
arbitrary or discriminatory.74
A further and specific rejection of the privilege
doctrine is seen in Torcaso v. Watkins.^ In this case,
plaintiff had been appointed by the Maryland Governor to
the office of Notary Public, but since he refused to
73. 344 U.S. 183 (1952). See pp. 138-40 infra for
complete analysis of facts and figures.
74. Ibid., at 191, 192.
75. 367 U.S. 488 (1961).
33
declare his belief in God, as required by the Maryland
Constitution, he was denied his commission. The highest
Maryland appellate court upheld the denial, relying mainly
on the doctrine established by McAuliffe, which the
Maryland court restated as follows: "The petitioner is not
compelled to believe or disbelieve, under threat of punish
ment or other compulsion. True, unless he makes the dec
laration of belief he cannot hold public office in Mary
land, but he is not compelled to hold office."76 in hear
ing the case on appeal, the United States Supreme Court
rejected Maryland's view. "The fact . . . that a person is
not compelled to hold office cannot possibly be an excuse
for barring him from office by a State-imposed criteria
forbidden by the Constitution."77
A second doctrine invoked to avoid ruling on the
constitutional issues in dismissal cases is based on sepa
ration of powers. The courts have here suggested that
hiring and firing of employees are internal matters of the
executive branch, and that "the courts have no general
supervising power over the proceedings and actions of the
various administrative departments of government."78
76. Torcaso v. Watkins, 223 Md. 49 (1960); App. 2nd
438 (1960), atTZT.
77. 367 U.S. 488 (1961), at 495-96.
78. Keim v. United States, 177 U.S. 290 (1900), at
292>
34
By suggesting that a bar to judicial intervention
may be based on separation of powers, the courts raise a
significant question regarding their own role. For, if
this is indeed the basis on which the courts have declined
to intervene, "one would assume that the courts would com
pletely decline jurisdiction without regard to the nature
of the executive action. This, however, is not the general
v i e w ."79 in some instances where the courts have declined
to intervene, they have nonetheless asserted that inter
vention would be desirable and perhaps necessary where the
executive department had misconstrued the statutory provi
sion regarding removal, or where the executive action was
arbitrary. "The moment such exceptions are admitted, how
ever, the separation of powers argument loses its force,"80
and further, the exceptions make uncertain the view of the
courts. For these reasons it is suggested that this par
ticular doctrine should be completely abandoned as im
precise and unworkable.
A third reason for judicial disinclination to inter
vene in dismissal cases is "based on a myth"®'*- that any
interference with the absolute power of removal vested in
a superior officer would encourage insubordination among
79. Chaturvedi, op. cit., p. 323.
80. Ibid.
81. Ibid., p. 326.
35
subordinates and would result in inefficiency of the
service. This reasoning was originally followed in Page
v. Moffett^ in which plaintiff alleged he was removed for
political reasons in violation of Civil Service regula
tions. The court, however, refused to intervene because
the "result would be a breaking down of all discipline in
every administrative department of the government."83
This line of reasoning has now lost favor, and "it
is doubtful whether any court would support an agency
removal solely on this basis."84 Substantiation for this
85
assertion may be found in Crocker v. United States, in
which the Court of Claims refused to uphold an administra
tive determination refusing to reinstate an employee.
Plaintiff, who was employed at the Medical Center for
Federal Prisoners at Springfield, Missouri, was removed on
the basis of an unsatisfactory efficiency rating. On
appeal, the Efficiency Rating Board of Review changed his
rating from "unsatisfactory" to "fair," and suggested that
he be reinstated unless the warden had a justifiable reason
for not doing so. Even though vacancies existed, the
warden refused to reinstate, claiming that once an employee
82. 85 F. 2nd 38 (C.C.D.N.J. 1898).
83. Ibid., at 39.
84. Chaturvedi, op. cit., p. 327.
85. 127 F. Supp. 568 (Ct. Cl. 1955).
36
had been given an unsatisfactory rating and dismissed, he
should not be reinstated at the same institution because
of the effect this would have on the morale of other em
ployees and upon their attitude toward the management of
the institution. In rejecting this argument, the Court
stated:
In our opinion employee morale would be consider
ably improved by the knowledge that management
was ready and willing to acknowledge and correct
its mistakes. ... It appears to the Court that
the adverse effect, if any, created by reinstating
the plaintiff would not be on the employees but
rather on the w a r d e n .86
Another of the devices used to justify judicial
abdication might be labeled the "Efficiency Doctrine."
Under this the courts have limited the scope of their in
volvement by asserting that they "lack the background and
experience" to review an assertion by a dismissing execu
tive agency that a causal relationship exists between the
specific conduct of an employee and his efficiency. At
base, this approach may be reduced to the question of
expertise, and the courts have with reason declined to
inquire into on-the-job assessments by administrators of
employee conduct alleged to create a lack of efficiency.
But they have by this refusal to inquire into the problem
86. Ibid., at 57. For the impact of this decision
in a different context, see pp. 39-40 infra.
37
"been blinded to the possibility of injustices in cases in
which the administrator attempts to use data not provided
by on-the-job performance."87
A leading example of the application of the Effi-
OO
ciency Doctrine is Dew v. Halaby. in which plaintiff was
dismissed as an air traffic controller because of alleged
homosexual activity prior to the time of his employment.
At the hearing and trial there was no evidence presented
that this homosexual activity in any way affected Dew's
performance of his job. Yet, the dismissal was upheld on
the basis of the examiner's determination that this activ
ity was detrimental to the efficiency of the service. It
was admitted by both sides that the acts were prior to
employment, so they had no possible impact on job perfor
mance; other employees were not aware of the acts so there
was no adverse effect on the morale of other employees.
Rather, the administrator and the courts were asked to
assess the possibility that prior antisocial behavior
would be repeated and would negate effective performance.
A departure from such strict adherence to the
89
Efficiency Doctrine was suggested in Pellicone v. Hodges.
87. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 723.
88. 317 F. 2nd 582 (D.C. Cir. 1963); cert, denied,
379 U.S. 904 (1964).
89. 320 F. 2d 754 (D.C. Cir. 1963).
38
This case arose after a pressman with fifteen years' em
ployment was dismissed by the Commerce Department on the
basis of a personal history statement which revealed a
previous arrest in the District of Columbia for "Disorderly
Conduct--Prostitution." Plaintiff was dismissed for
"conduct unbecoming to a government employee," and for
"criminal, infamous, dishonest, immoral, or notoriously
disgraceful b e h a v i o r ."90 jn this instance the court found
no evidence to support the charges since there was no such
crime specified in the District of Columbia Criminal Code.
Inasmuch as the dismissal was based partly on alleged
criminal acts for which no covering statute could be found,
the court reversed the dismissal.
However, the court declined to indicate whether it
might have upheld the dismissal purely on grounds of
"immoral" or "infamous" conduct, and voided the dismissal
on purely procedural grounds, thus avoiding a direct ruling
on a basic constitutional issue. Importantly, however, the
court did indicate that such conduct alone would not have
been sufficient grounds for dismissal, inasmuch as mere
assertion of immoral or infamous conduct would not alone
have demonstrated a relationship between the act and the
efficiency of the service.
90. Ibid., at 756.
39
Thus, despite the procedural nature of the holding,
the court appears to have acknowledged that an
administrator's expertise does not endow him with
any special ability to assess the relationship
between "immoral" or even "criminal" conduct out
side the employment context and the "efficiency"
of the service. Consistent application of such a
refined view of the role of expertise would seem
a requisite for rational enforcement of the sta
tutory norm.91
What might be labeled the "Good Faith Doctrine" has
also been invoked, although this approach permits somewhat
greater control by the judiciary than some of those previ
ously mentioned. Essentially, this approach provides for
a negative judicial check on executive action, and requires
that the plaintiff show malice on the part of the adminis
trator or board which has initiated the dismissal. This
approach challenged the previously held precedent that a
dismissal would be upheld if it seemed merely that the
administrator had acted with "sincerity," a motive ex
tremely difficult to contest judicially. The protection
which the Good Faith Doctrine offers the employee is obvi
ously limited, however, by the fact that arbitrary dis
missals may arise from motives other than malice, and also
that the burden of proof falls to a greater degree on the
plaintiff.
91. "Dismissal of Federal Employees," Columbia Law
Review, op.cit., p. 725. There is no evidence, however,
that this view has been adopted by the Supreme Court or
extended to other similar cases.
40
There is some evidence that the courts are moving
from a negative to a positive position in regard to this
doctrine by requiring that the administrative judgment be
not only free from malice, but also that it be honest.
This approach is illustrated by Crocker v. United States,92
where the court found that the "true motive" for the dis
missal was neither malice nor the good of the service, but
rather that the warden "did not want it known around the
Medical Center that the plaintiff had won his appeal and
'gotten away with it. "'93 in asserting that the dismissal
had not taken into account the plaintiff's qualifications
for the position, the court ruled that the "good faith"
criteria had not been met.
In an obiter dicta the court also objected to the
use by administrators of any "rule of thumb" to justify
a dismissal, for such a rule could be applied to any
background information in the personnel questionnaire
which might be used as grounds for a dismissal on the
allegation that the information showed a possibility of
future inefficiency. The court thus hit at a particular
problem, still present in many dismissal cases: that pre
judgment that a certain relationship exists precludes a
full and reasoned inquiry into the facts.
92. 127 F. Supp. 568 (Ct. Cl. 1955). See pp. 35-36
supra for fact background and application of the principles
in a different context.
93. Ibid., at 572.
41
Suggestions for a New Judicial Approach
These guidelines have in the past precluded any ex
tensive judicial protection of the rights of employees.
Yet, to assure greater protection, "judicial interference
with present administrative practice need not be exten
sive."^ Those few decisions which have confronted other
than procedural issues have not confined administrative
dismissals to alleged lack of fitness of a given employee
for a position, but have permitted a desirable and neces
sary administrative freedom to consider the impact of em
ployee behavior on co-workers. For example, employer
ratings have not been viewed by the courts as rigid state
ments of fitness, but have been recognized as administra
tive approximates which may be disregarded when specific
charges can be sustained.^5 Finally, the courts have not
required proof beyond a reasonable doubt to uphold charges
96
of a criminal nature in civil dismissal proceedings.
If the still prevalent judicial attitude of
avoiding review were abandoned, continued de
velopment of similar narrow rules to cover
standardized employment problems would be
94. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 727.
95. See DeFino v. McNamara, 287 F. 2d 339 (D.C.
Cir.), cert, denied, 366 U.S. 976 (1961); Thomas v. Ward,
225 F. 2nd 953 (D.C. Cir.), cert, denied, 350 U.S. 95#
(1956).
96. Camero v. United States, 345 F. 2nd 798 (Ct.
Cl. 1965).
42
encouraged. In the difficult cases, however, the
courts would be free to create and enforce stand
ards of relevance to control arbitrary exercise
of executive discretion.97
For this development to take place, however, there
must necessarily be a reversal of the trend which has
resulted in the abandonment by the courts of the right to
inquire into the facts alleged by the executive in ef
fecting dismissals, an abandonment which, according to
Strong, is virtually complete.
In tracing and assessing the abandonment of judicial
inquiry into executive decisions, Strong first makes a
distinction between two types of judicial review: Constitu
tional Judicial Review, the authority of the courts to rule
on the constitutionality of governmental acts; and Common
Judicial Review. It is the latter which is relevant to the
issue at hand, and which Strong identifies as a "judicial
reconsideration of legislative and executive action, as it
bears upon a given individual, before governmental sanction
. . . becomes final as to that person."99 Judicial review,
97. "Dismissal of Federal Employees," Columbia Law
Review, op. cit., p. 727.
98. Frank R. Strong, "Judicial Review: A Tri-
Dimensional Concept of Administrative-Constitutional Law,"
West Virginia Law Review, LXIX, No. 3 (April, 1967),
pp. 249-/6.
99. Ibid., p. 250. It is this form of judicial
review which will hereafter be referred to simply as
judicial review.
43
of either variety, implies a finality of court decision.
But, Strong observes, "the Supreme Court of the United
States has in general yielded to Federal administrative
bodies on the point of finality, with surprising ease."^®
Strong identifies three basic steps in this retreat.
The first came with reference to fact determinations,
wherein the courts declined to inquire into the specific
facts alleged by the administrative body initiating the
dismissal. "Presumably, this was in deference to the sup
posed expertise of administrative bodies once described by
Holmes as 'appointed by law and informed by experi
ence.1"^®^ This retreat was neither final nor complete,
since the courts did require that administrative findings
must be supported by substantial evidence, even though the
courts would not examine the factual basis of this evi
dence. More recently, however, the courts have retreated
in another area by "according near-finality to administra
tive interpretations of federal statutes, by tradition,
a 'law' question.
The third step in the retreat Strong identifies as
the Court's failure to invoke constitutional
judicial review to insist, in accordance with
the separation of powers principle of the
100. Ibid., pp. 255-56.
101. Ibid., p. 256.
102. Ibid.
44
Constitution, upon its rights to a more authori
tative participation in law determinations,
which, together with the resolution of fact
issues, constitutes the essense of ordinary
judicial review.103
Despite the fact that the Court has not positively
asserted this right of constitutional judicial review, it
has, however, refused to specifically yield this right.1®^
In Crowell v. Benson it was established that
the doctrine of separation of powers does not
prevent transference to federal administrative
bodies of near-finality in the ordinary type of
fact determination. Stated otherwise, the Court
is willing to yield to the administrative process
as regards its historic exercise of ordinary
judicial review, retaining only a minimal re
viewing power. [However,] a different question
is presented where the determinations of fact
are fundamental or jurisdictional.105
Here, the constitutional limitations which the court may
apply are two: the federalistic one of Congressional power
vis-a-vis the States, and the due process prohibitions on
both the States and Congress.
In fact considerations involving these two situa
tions ,
103. Ibid., p. 257.
104. See Ohio Valley Water Co. v. Ben Avon Borough,
252 U.S. 287 (1920); Ng Fung Ho v. White. 259 U.S. 276
(1922); Crowell v. Benson, 285 U.S. 22 (1932); and _St.
Joseph Stock Yards Co. v. United States, 298 U.S. 38
(1936).
105. Crowell v. Benson, 285 U.S. 22 (1932), at 26.
45
the question is not the ordinary one as to the
propriety of provisions for administrative
determinations. Nor have we simply the ques
tion of due process in relation to notice and
hearing. It is rather a question of the
appropriate maintenance of the Federal Judi
cial power in requiring the observance of
constitutional restrictions. It is the ques
tion whether the Congress may substitute for
constitutional courts, in which the judicial
power of the United States is vested, an
administrative agency . . . for the final
determination of the existence of facts upon
which the enforcement of the constitutional
rights of the citizen depend. The recogni
tion of the utility and convenience of ad
ministrative agencies for the investigation
and finding of facts within their proper
province, and the support of their authorized
action, does not require the conclusion that
there is no limitation on their use, and that
Congress could completely oust the courts of
all determinations of fact by vesting the
authority to make them with finality in its
own instruments or in the Executive Depart
ment. That would be to sap the judicial power
as it exists under the Federal Constitution,
and to establish a government of bureaucratic
character alien to our system, wherever fun
damental rights depend, as not infrequently
they do depend, upon the facts, and finality
as to facts becomes in effect finality in
law.106
Within these relatively narrow limits set by the
courts for judicial intervention, what specific remedies
are available to the employee who alleges he was dismissed
in violation of his rights? It has been established that
a writ of mandamus is the one proper remedy to unjust
106. Ibid., at 56-57.
46
removal, but this remedy is sharply limited in actual
practice by the fact that authority to issue writs of
mandamus in such circumstances is limited to the District
Court for the District of Columbia. A strong argument
favoring use of the injunction as a remedy is made by
Murphy,1^® who points out that the District Courts in the
States could perform the same remedial function, now
available only through mandamus, through their power to
issue mandatory injunctions. This is a legally feasible
remedy since the mandatory injunction and mandamus are
recognized as e q u i v a l e n t,109 and since an injunction may
be used to compel action in the absence of mandamus, "when
and if the facts warrant it."HO Despite recognition of
the equivalence of the two procedures, the Federal Courts
have still declined to take jurisdiction through the use
of the mandatory injunction.
These are the basic principles and guidelines
107. Ex parte Sawyer, 124 U. S. 200 (1888).
108. Cornelius F. Murphy, Jr., "judicial Review of
the Removal of Federal Employees: A Re-Examination," The
Federal Bar Journal, XXII, No. 1 (Winter, 1962), pp. 25-
109. Miquel v. McCarl, 291 U.S. 441 (1934);
McNulty v. National Mediation Board, 18 F. Supp. 494 (No.
Dist. N.Y. 1936).
110. Delaware and Hudson Railway Corporation v.
William, 129 F. 2d 11 (7th Cir. 1942), at 11.
47
applied by the courts when deciding cases involving the
rights of persons dismissed from Federal and State employ
ment. With these principles in mind, it is now possible
to move to a consideration of some of the specific cases
and issues arising from dismissals under specific programs
and laws.
CHAPTER II
THE STATUS OF THE FEDERAL EMPLOYEE AND
PROTECTION AGAINST ARBITRARY DISMISSAL
As indicated in Chapter I, this examination of the
rights of dismissed government employees will concentrate
on two aspects of the problem: first, the question of
whether government can require a prospective employee to
give up, as a condition of employment, basic constitutional
rights; and second, the role of due process in protecting
the rights enjoyed. However, the due process provisions
of the Fourth, Fifth, and Sixth Amendments, and the rights
of freedom of expression and association protected by the
First, overlap to the extent that rather than analyze the
questions arising under each of these Amendments separate
ly, they will be combined and considered under three basic
categories based primarily on the nature of governmental
employment and specific acts authorizing dismissal. These
categories will be the Hatch Act and related statutes
calling for dismissals for the "efficiency of the service"
and for political activity; dismissals arising under vari
ous loyalty and security programs; and dismissals of em
ployees of private contractors doing business with the
48
49
government.
The Hatch Act and Political Activity
Purposes and Provisions of the
Hatch Act and Related Statutes
The major objectives in imposing restrictions on
the activities of employees other than elected officials
have been twofold: to prevent employees from using their
offices to promote partisan ends, and to prevent them from
being subjected to partisan political pressures because of
their offices. This concern is today primarily reflected
in the provisions of the Hatch Acts of 1939^ and 1940,^
but a number of regulations and statutes which preceded
the present acts need to be noted.
For purposes of this dissertation, the Executive
Order issued by Theodore Roosevelt in 1907, amending the
Civil Service Act, is a logical and realistic starting
point. This order provided that ’’ persons in the competi
tive classified service, while retaining the right to
vote as they please and to express privately their opin-
oins on all political subjects, shall take no active part
in political campaigns."3 This was not the first
1. 53 St. 1147 (1939).
2. 54 St. 767 (1940). Both have now been combined
in 5 U.S.C. Sec. 118 (I)-(N) 1958.
3. 5 C.F.R. Sec. 752.104 (1968).
50
prohibition on political activity by government employees,
but it is important as the first which made a distinction
between classified and non-classified personnel.
The next significant regulation came with the pas
sage of the Civil Service Act of 1912.^ This act was
designed to reduce absolute executive discretion in dis
missal, and provided that employees in the classified
service might not be removed "except for such causes as
will promote the efficiency" of the service.^ However,
despite the intention of protecting the employee, the
vagueness resulting from failure to define "efficiency"
in the statute instead permitted increased latitude for
interpretation by the removing authority.
To be sure, some guidelines have been provided by
Civil Service Rules, which stipulate that cause for removal
shall include those reasons which constitute cause for
disqualification of an applicant, as listed in subsections
(B)-(G) of Section 731.201. These include criminal, in
famous, dishonest, immoral, or notoriously disgraceful
conduct; intentional false statements or deception or
fraud in examination or appointment; refusal to furnish
testimony as required; habitual use of intoxicating
4. 37 St. 555 (1921), as amended 5 U.S.C. Sec. 652
(1964).
5. 5 C.F.R. Sec. 752.104 (1968).
6. 5 C.F.R. Sec. 731.201 (1968).
51
beverages to excess; and reasonable doubt as to the loyalty
of the person to the Government of the United States.
These reasons, however, become merely enumerative
and suggestive, rather than exhaustive, for subsection (G)
serves as an "elastic clause" by making "any legal or other
disqualification which makes the individual unfit for the
service" a sufficient ground for removal. All of the above
provisions have been invoked to effect dismissals, with the
courts upholding virtually all of the dismissals as pro
moting the "efficiency of the service.
7. Dismissals for the following reasons have been
upheld by the courts: for inefficiency, Keim v. United
States, 177 U.S. 290 (1900); for unsatisfactory work,
Hc'fl'l'nty v. Brownell. 249 F. 2d 124 (D.C. Cir. 1957); un-
satisfactory attendance, Washington v. Summerfield, 228
F. 2nd 452 (D.C. Cir. 1955;; absence from work without
leave, Studemeyer v. Macy. 321 F. 2nd 386 (D.C. Cir.) cert.
denied, 375 U.S. 934 (1963); withholding customs documents
and funds, Angilly v. United States, 105 F. Supp. (S.D.N.Y.)
affirmed, 199 F. 2nd 642 (2nd Cir. 1952); raising an objec-
tion in a disorderly manner, Divinv v. Campbell, 194 F. 2nd
(D.C. Cir. 1952); emotional instability, Seebach v. Cullen,
224 F. Supp. 15 (N.D. Calif. 1963), affirmed, 338 F. 2nd
663 (9th Cir. 1964); accepting favors, Monahan v. United
States, 354 F. 2nd 306 (Ct. Cl. 1965); discourteous behav
ior toward co-workers and subordinates, Green v. Baughman,
243 F. 2nd 610 (D.C. Cir.), cert, denied" 355 U.S. 819
(1957); writing anonymous letters about fellow employees,
Krennrich v. United States, 340 F. 2nd 653 (Ct. Cl.), cert.
denied, 382 l).5. 8/0 (1965); writing an article criticizing
the President, United States ex rel. Taylor v. Taft, 24
App. D.C. 95 (D.C. Cir. 1904); not reporting the mistreat-
ment of a patient and not stopping such mistreatment, Haas
v. Overholsen, 223 F. 2nd 314 (D.C. Cir. 1955); nonpayment
of personal debts, Carter v. Forrestal, 175 F. 2nd 364
(D.C. Cir.) cert, denied, 338 U.S. 832 (1949); and homo
sexuality, Dew v. Halaby, 317 F. 2nd 582 (D.C. Cir. 1963);
cert, granted” 376 U.S. 904, cert, dismissed, pursuant to
Rule 60, 379 U.S. 951 (1964).
52
Provisions to protect against arbitrary removal in
addition to the "efficiency of the service" doctrine have
been added periodically, and include the following: no em
ployee may be removed for failure to render a political
service; no employee may be removed on the basis of his
race, color, sex, religion, or political affiliation;
protected employees must be given both written notice
stating the reasons for removal, and the opportunity to
reply to the charges by affidavit. Certain safeguards
were also afforded applicants, including the provisions
that there may be no refusal to hire because of race,
Q
color, or religious or political views.0
Many of these Civil Service rules have been included
in the Hatch Acts,9 a major purpose of which was to bring
non-class ified government employees under the provisions of
the Civil Service rules. Prior to 1939, approximately 69
per cent of Federal employees were governed by Civil
Service regulations; the 1939 Act was designed to extend
the restrictions on political activity to the remaining 31
per cent. The 1940 section of the Act extended the re
strictions to State and local employees whose principal
employment was on Federally-financed projects.
In addition to the specific restrictions already
8. 5 C.F.R. Sec. 752.104 (1968).
9. 5 U.S.C. Sec. 118 (I)-(N) (1958).
53
mentioned in connection with Civil Service rules, the Hatch
Act provision which prevents government employees from
taking an "active part in political management or political
campaigns" needs to be specifically noted. Generally,
every employee in the executive branch of the Federal gov
ernment falls within the prohibitions of the Act and sup
plemental statutes. There are, however, some notable
exceptions. The prohibition against political management
and participation in political campaigns does not apply to
any person employed as the head or assistant head of an
executive department, or paid from the appropriations of
the President's office, or appointed as a member of the
executive department by the President with the advice and
consent of the Senate.'*'® Also excepted are non-partisan
political acts.*-*'
With regard to State employees, the Act seeks to
regulate only those employees who work for the State or its
local agencies and whose activities are "financed in whole
or in part by loans or grants made by the United States or
a Federal Agency."12 Also exempted from restrictions are
individuals "employed by an educational or research insti
tution, establishment, agency or system which is supported
10. 5 U.S.C. Sec. 7324 (D) (Supp. Ill, 1968).
11. 5 UoS.C. Sec. 7326 (Supp. Ill, 1968).
12. 5 U.S.C. Sec. 1502 (Supp. Ill, 1968).
54
in whole or in part by a State or political subdivision
thereof.
Having identified the statutory and administrative
regulations relevant to dismissals, it is now in order to
examine the major cases arising under the Hatch Act as it
relates specifically to Federal employees. This will in
volve three basic questions: 1) What constitutes taking
an "active part in political management or political cam
paigns?" 2) Do the provisions of the Hatch Act require
that the government employee give up constitutionally
guaranteed rights merely because of his position, or in
order to accept such a position? 3) What steps have the
courts taken to ensure protection of the rights of govern
ment employees?
Cases Challenging Constitutionality
of the Hatch Act
There are only two cases involving the Hatch Acts
in which the Court clearly faced the question of the con
stitutionality of the Acts. They are United Public Workers
14
v. Mitchell, which sustained Section 9 of the Act re
lating to the political activities of Federal employees,
13. 5 U.S.C. Sec. 1501 (4) (B) (Supp. Ill, 1968).
14. 330 U.S. 75 (1947).
55
and Oklahoma v. United States Civil Service Commission,^
upholding the provisions of Section 12-A relating to the
political activities of State employees.
Mitchell grew out of an action brought by twelve
employees of the United States Mint seeking declaratory
relief and an order enjoining further enforcement of those
provisions which forbade Federal employees to take an
active part in political management or in political cam
paigns. The suit sought reversal of an adverse lower court
decision which upheld the constitutionality of the Act and
denied injunctive relief to eleven of the petitioners on
grounds that they lacked standing to sue.^ At the time
of this original action, the eleven had not actually
violated any provisions of the Act, but stated in their
complaint that they wished to engage in political activi
ties, and that the provisions of the Act prohibiting them
from doing so violated protections of the First, Fifth,
Ninth, and Tenth Amendments. The twelfth employee, George
Poole, had actually violated statutory provisions by acting
as a party committeeman and poll watcher, and at the time
of seeking legal remedy was about to be removed from his
job by the Civil Service Commission.
The Supreme Court, as did the lower court, declined
15. 330 U.S. 127 (1947). This decision will be
analyzed in Chapter III.
16. 56 F. Supp. 621 (D.C. Cir. 1944).
56
to consider the constitutional claims of the eleven, de
claring that they had not presented a justiciable issue.
This holding was based on the doctrine of separation of
powers, the Court ruling that until there had been "actual
interference" with guaranteed rights, there could be no
determination of the constitutionality of the legislation.
Since the petitioners had only desired to act, "no threat
of interference by the [Civil Service] Commission . . .
appears beyond that implied by the existence of the law
and the regulations."-^
In regard to Poole, who had been threatened with
actual interference, the Court accepted his assertions
that the First, Ninth, and Tenth Amendments did protect a
citizen's right to engage in political activity. It ad
mitted that the Hatch Act did in fact interfere with these
rights, and with freedom of speech, and further, that a
denial of these rights was also a violation of due process
under the Fifth Amendment. However, this admission was
severely tempered, if not totally negated, by the assertion
that the rights involved were "not absolute," and could,
therefore, be "balanced against a Congressional enactment
to protect a democratic society against the supposed evil
of partisanship.
17. 330 U.S. 75 (1947) at 91.
18. Ibid., at 96.
57
Analysis and comment regarding Mitchell have been
extensive, with criticisms of the decision significantly
overbalancing those in support. Those who criticize the
decision, however, are far from agreement as to the validi
ty of the Court's reasoning and also as to the implications
of the decision.
One of the strongest justifications of the Hatch Act
and of Mitchell is presented by Irwin,^ who suggests that
not only is the Hatch Act necessary in carrying out a
legitimate Congressional intent, but also that the deci
sions upholding the Act followed established constitutional
principles. First, Irwin argues on the grounds of public
welfare, contending that "... the Hatch Act ... is
the most effective bulwark against public employment being
20
the handmaiden of politics." Second, the Hatch Act
serves to positively promote the interests and security of
the employee. It is neither restrictive nor dependent on
coercion for its enforcement; it is, rather, "to a great
degree self-enforcing, because the large majority of those
subject thereto welcome it. They do not want to be politi
cally active, personally or financially, and it enables
19. James W. Irwin, "Comments. Public Employees
and the Hatch Act," Vanderbilt Law Review, IX, No. 3
(April, 1956), pp. 527-33.
20. Ibid., p. 529.
58
them to gracefully remain aloof."21 The complete prohibi
tion on political activity demanded by the Act frees the
individual employee from the application of "intangible
coercion" in the solicitation of "voluntary" contributions.
Finally, Irwin contends it is completely erroneous
to draw the conclusions from the Mitchell decision that
government can, as alleged by critics, arbitrarily dismiss
employees. In rebuttal to the assertion that the right of
government employees to engage in partisan political ac
tivity has been part of the American political tradition,
Irwin points to restrictions imposed by such advocates of
personal liberty as Jefferson, Daniel Webster, and
Theodore Roosevelt.
A vigorous criticism of the decision and the
statutes it upheld has been leveled by Dalmas H. Nelson.
He charges that the restrictions on the political activi
ties of government employees sanctioned by the decision
constitute "one of the most significant abridgments of
constitutional rights of public employees that the courts
have sustained. . . . "^2
Nelson bases his argument on the assertion that
government employees have--or ought to have--a
21. Ibid., p. 530.
22. Dalmas H. Nelson, "Public Employees and the
Right to Engage in Political Activity," Vanderbilt Law
Review, IX, No. 1 (December, 1965), p. 3TI
59
constitutionally protected right to engage in political
activity, and he questions the wisdom and validity of the
decisions restricting these rights.
. . . the abridgments of this right that the
courts have held may be constitutionally imposed
on public employees are exceptionally extensive.
This has been justified basically in terms of
the doctrine that public employment is a privi
lege which the government may extend or withdraw
at will and upon such terms as it chooses, and
that denial of public employment does not con
stitute punishment. The upshot is that in this
area the government may act with almost complete
arbitrariness, even when basic rights such as
freedom of expression are i n v o l v e d .23
In his analysis of the Mitchell decision, Nelson
first cites two earlier decisions in which the political
activity of government employees was restricted. The first
2 A
is Ex parte Curtis, which sustained a law prohibiting all
but a specified top-level category of Federal employees
from "requesting, giving to, or receiving from, any other
officer or employee of the government, any money or prop
erty or other thing of value for political purposes.
) f i
United States v. Wurzbach upheld the same restrictions
applied to members of or candidates for Congress.
As noted earlier, Mitchell and Oklahoma are the
23. Ibid., p. 27.
24. 106 U.S. 371 (1882).
25. Ibid., at 374.
26. 280 U.S. 396 (1930).
60
only decisions ruling directly on the constitutionality of
the Hatch Acts, so the precedents established still stand.
The reasoning of the Court in Mitchell, as contained in the
opinion by Mr. Justice Reed, may be briefly summarized as
follows: partisan political activity by employees may be
restricted inasmuch as it is held to adversely affect
employee morale; partisan political activity may make dif
ficult the orderly management of administrative personnel;
allowing partisan political activity creates the danger
that promotion may come to be based on political activity
rather than merit; partisan political activity may produce
partiality in administrative services to the public as a
result of political considerations; it was the legitimate
intent of Congress to forestall the development of one-
party government, to insure that political parties serve
the public interest, and to prevent political leaders from
using government employees to create and develop political
machines; this legitimate intent is embodied in the there-
27
fore legitimate restrictions of the Hatch Act.
According to Nelson, the ultimate result of the
Mitchell decision "is that the government may act arbi
trarily in hiring and firing, and that entrance into the
public service means entrance into a second-class status,
27. 330 U.S. 75 (1947) at 95-101.
61
so far as constitutional rights are concerned."^ He sug
gests that the decision should be evaluated in the light
of two basic considerations: first, in terms of general
constitutional law regarding freedom of expression, and
second, in terms of tests to be applied to particular
rationales for the decision. He concludes that if the
decision is so evaluated, it must be held in error.
In relation to the first concern, Nelson suggests
that the Court "strikingly departed from the general path
of constitutional law concerning freedom of expression:
namely in the matter of presumption of constitutionality
and in the matter of vagueness."^9
This argument is reinforced by Madama, who comments
that
the rationale of the Court was based almost en
tirely upon the expediency of the Hatch Act in
assuring a more efficient and diligent Civil
Service. Nowhere did the Court treat the peti
tioners' claims of abridgment of First Amendment
rights. Nor did the Court even mention that that
Act was overbroad, sweeping aside fundamental
freedoms without notice as to what fell within
the prohibited categories.30
Further, Madama urges, the Court acted in a manner
28. Nelson, op. cit., p. 35.
29. .Ibid., p. 36.
30. Robert M. Madama, Jr.. "The Hatch Act--A Con
stitutional Restraint of Freedom? ' Albany Law Review,
XXXIII, No. 2 (Winter, 1969), p. 349^
62
completely contrary to previous decisions involving First
Amendment freedoms in saying that "for the regulation of
employees it is not necessary that the act regulated be
anything more than an act deemed by Congress to interfere
with the efficiency of the public service.
Madama concludes that the Court is saying that
Congress, when restricting the right of public employees
to speak or assemble, "apparently need not direct its
restraints to any 'clear and present danger,'"32 but need
only conclude that the restricted activity "may promote or
retard . . . advancement or preferment . . . with
superiors."^3 This, Madama contends, flagrantly violates
the accepted doctrine that when First Amendment freedoms
are restricted, Congress must demonstrate a specific and
compelling need for their restriction.
As to the second standard for evaluation, that is,
in terms of tests to be applied to particular rationales
for the decision, Nelson asserts that the Court made in
valid or inappropriate use of the four tests it applied to
uphold constitutionality. First, citing Curtis as prece
dent for Mitchell is "inappropriate," inasmuch as Curtis
is actually contradictory to Mitchell. Second, Nelson
31. 330 U.S. 75 (1947) at 101.
32. Madama, op. cit., p. 349.
33. 330 U.S. 75 (1947) at 101. (Emphasis added.)
63
asserts that the Court's use of the privilege doctrine,
that government employment is a privilege and not a right,
is "insupportable." A third test applied by the Court,
that restrictions are needed to insure administrative
efficiency, is also dismissed by Nelson. Finally, the
Court applied a political justification test, holding that
restrictions were needed to combat the potential rise of
political machines, to protect the employees against co
ercion, and to prevent compulsory political contributions
to the party in power. Nelson rejects this test as being
based on an exaggerated fear of the evils that the act
seeks to prevent.
Another strong attack on both the Hatch Act and the
o /
Mitchell decision is made by Wormuth, who begins with
the assertion that, contrary popular beliefs notwithstand
ing, there are some absolute rights. He identifies some
of them, citing Court decisions upholding them as absolute,
as including protection against passage of bills of
attainder or ex post facto laws, rights appurtenant to
citizenship, and right to confrontation by witnesses and
trial by jury. In view of the fact that certain absolute
rights do exist,
34. Francis D. Wormuth, "The Hatch Act Cases,"
Western Political Quarterly, I, No. 1 (March, 1948),
pp. 165-73.
it comes as a shock when the Court in United Pub
lic Workers v. Mitchell, upholding the prohibition
in the First Hatch Act on political activities by
Federal employees, asserts that "this Court must
balance the extent of the guarantees of freedom
against a Congressional enactment to protect a
democratic society against the supposed evil of
political partisanship by classified employees
of the government."35
It is Wormuth's assertion that the Court deprived
government employees of an absolute right to political
activity and participation, and that once having destroyed
this right, the determination of the case could then be
treated as simply one of procedure. The Hatch Acts and
the decisions upholding them, he urges, violate the basic
premises of the democratic process. "The Hatch Acts not
merely deprive five million citizens of their rights, but
they deny them the opportunity to take effective political
action to regain these rights."^6
Wormuth finally urges that the Hatch Acts should be
declared unconstitutional on the basis of what he labels
the "ultimate tendency" doctrine. If Federal employees may
be deprived of their rights for selfish purposes, "then
farmers, workers, businessmen, taxpayers, all of whom have
an obvious stake in governmental policies, may--indeed
should--be included in that prohibition."^
65
The persuasiveness of these criticisms notwithstand
ing, Mitchell still stands as precedent regarding the con
stitutionality of the Hatch Acts. However, subsequent
decisions, involving particularly interpretations of the
First Amendment, cast some doubt on the current validity
^of Mitchell, and the ability of the Acts to withstand
challenge on constitutional grounds. These decisions and
the possible bases for renewed challenge to the Hatch Acts
will be discussed in Chapter V.
Security and Loyalty Programs and
Dismissal of Government Employees
Historical Development and
Statutory Provisions
More recent amendments to the Hatch Act have de
parted from the original concern with the political activi
ties of government employees. These amendments, together
with additional separate statutes, reflect an increasing
concern with the questions of loyalty and security, and
the right of the government to dismiss employees whose
loyalty is in doubt or who are considered security risks.
In order to place court decisions involving dismissals
pursuant to these statutes in proper perspective it is
necessary to trace briefly the historical background and
development of the statutory provisions of the loyalty and
66
security programs.
There has existed in the American tradition since
the Colonial period a demand for loyalty to the political
entity^ and an inclination to "regard with fear and sus
picion all things foreign.This fear was reflected in
earlier eras, for example, in the Alien and Sedition Acts,
the Know-Nothing Party, and the Anti-Masonic Party. It is
not until the 1890's, however, that subversion, "in the
sense of an effort to destroy existing political and social
40
institutions" becomes a target of Federal legislation.
Measures were also taken during World War I to remove
people of suspect loyalty from government service. "But
none of these earlier episodes approached the experience
of the last decade [1948-58] in intensity, in sweep, or in
the degree of public concern to which they gave rise."41
Statutory attempts to insure loyalty and security
38. David R. Pfalzgraf, "An Appraisal of Security
Legislation in Education in Light of Keyishian: A Proposed
Solution," Buffalo Law Review, XVI (Spring, 1967), p. 782.
39. Frank J. Dailey, "Loyalty Requirements versus
Academic Freedom," Marquette Law Review, LII, No. 2 (Fall,
1968), p. 251.
40. Eleanor Bontecou, The Federal Loyalty-Security
Program (Ithaca, New York: Cornell University Press, 1953),
p. 1.
41. Ralph S. Brown, Jr., Loyalty and Security.
Employment Tests in the United States (New Haven: Yale
University Press, 1958), p. 3.
reflected the public mood of fear and insecurity, and
reached a height in the period from just prior to World
War II through the period of "McCarthyism" in the mid-
1950's.
One of the first major attacks on subversion came
in 1938, when Congressman Martin Dies made his Special
Committee on Un-American Activities the forum for an attack
on government employees alleged to be Communists or Com
munist sympathizers. The ultimate outgrowth of this was
repeal of the original Section 9-A of the Hatch Act, and
its replacement by a version which contained the following
provisions: It is unlawful for a Federal employee to
have membership in any political party or organi
zation which advocates the overthrow of our
constitutional form of government in the United
States. (2) Any person violating the provisions
of this section shall be immediately removed from
the position or office held by him, and there
after no part of the funds appropriated by any
Act of Congress for such position shall be used
to pay the compensation of such person.^
These provisions were extended by a number of sup
plementary acts during World War II, including the so-
called "McCarran Riders," designed to increase the dis
cretion of Department heads in dismissing employees. One
of these, typical of the others, provided that
The Secretary of State may, in his absolute
discretion . . . terminate the employment of
any officer or employee of the Department of
42. 53 St. 1148 (1939), amended as 69 St. 624-5
(1955).
68
State or of the Foreign Service of the United
States whenever he shall deem such termination
necessary or advisable in the interests of the
United States.43
The Truman Loyalty Program. Systematic implementa
tion of the new legislation began with President Truman's
issuance on March 21, 1947, of Executive Order No. 9835,^
"which provided for the first large-scale loyalty program
for civilian employees of the Federal government.
The major provisions of the program included the
following:
1. Employees of the Federal government could be
removed for disloyalty, on the standard that
"based on all the evidence, reasonable grounds
exist for belief that the person involved is
disloyal to the government of the United
States."
2. The procedural rights of notice and hearing, as
provided in Civil Service regulations, are to
be accorded the person dismissed.
43. 60 St. 458 (1946).
44. 12 Fed. Reg. 1935 (1947), 5 U.S.C. Sec. 631
(1952).
45. Michael C. Slotnick, "The Anathema of the Se
curity Risk: Arbitrary Dismissal of Government Civilian
Employees and Civilian Employees of Private Contractors Do
ing Business with the Federal Government," University of
Miami Lav/ Review, XVII, No. 1 (Fall, 1962), p. 13.
69
3. The agency dismissing the employee, however,
might refuse to disclose the source of the
evidence upon which the charge of disloyalty
was based.
Despite the provision that the agency head was not required
to reveal the sources of its information, the burden of
proof was still basically on the agency initiating the
dismissal. However, in 1951, Executive Order No. 9835 was
amended to include the new standard that an employee might
be dismissed if "on all evidence, there is reasonable doubt
as to the loyalty" of the person, a standard which was
"generally regarded as shifting the burden of proof from
the government to the employee."46
Discretion by agency heads had also been extended
in 1950 by the passage of Public Law 733,^ known as the
Summary Suspension Act. It provided that the heads of
eleven specified departments and agencies^® were authorized
to dismiss any civilian employee whenever they "shall
46. Ibid., p. 14.
47. 64 St. 476 (1950), 5 U.S.C. 22-1 (1958).
48. The eleven were the Secretaries of State,
Commerce, Defense, Army, Navy, Air Force, Treasury, the
Attorney General, Chairman of the Atomic Energy Commis
sion, Chairman of the National Security Resources Board,
and the Director of the National Advisory Committee for
Aeronautics (now National Aeronautics and Space Adminis
tration) .
70
determine such termination necessary or advisable in
the interest of the national security of the United
States. ..." The Act further provided that only per
manent employees retained the right to notice and hearing
prior to dismissal, and authorized the President to extend
the coverage of the Act to additional departments and
agencies. In addition, the Act set forth procedures to
be followed in determining whether or not an employee was
a security risk, and provided channels for appealing such
a determination. However, the Act did not establish any
standards for determining what constituted a security risk,
and it is this lack which prompted challenges to dismissals
under its provisions, cases which will be considered later
in this Chapter.
Also incorporated into the Truman Loyalty Program
was the Internal Security Act of 1950,^9 which was passed
over Truman's veto. The major provision bearing on the
status of civilian employees of the government made it
unlawful for any member of a Communist-action or Communist-
front organization"*® to hold any non-elective office.
49. 64 St. 987 (1950), 5 U.S.C. Sec. 781-826
(1958).
50. Provided that the member had a knowledge of or
notice that such an organization was registered or had
been ordered to register as a Communist-action or
Communist-front organization.
71
The Eisenhower Security Program. Although aspects
of the Truman Loyalty Program involved the question of
security, the latter was given much greater emphasis
during the Eisenhower administration. This shift in em
phasis involves more than a mere change in terminology
from the Truman program, for
the shifts in wording in each instance represented
a hardening of the standard: from reasonable
grounds for belief of disloyalty to reasonable
doubt as to loyalty; from discharge if advisable
in the interest of national security, to retention
only if clearly consistent with national security.
The latter standard, both in the loyalty and se
curity cases, puts more of a burden on the employee
to clear himself, and a heavier onus on the ad
ministrator who clears him.51
The Eisenhower Program was initiated April 27, 1953,
with the proclamation of Executive Order No. 10450.-^
This utilized the provisions of Public Law 733 to extend
discretionary power to dismiss to the head of every execu
tive department and agency in the Federal government,
rather than only the eleven specified in the law. Further,
the head of each department or agency was charged with
establishing and maintaining an effective program to in
sure that the employment or retention of any employee was
clearly consistent with the interests of national security.
51. Brown, op. cit., pp. 31-2. Slotnick, op. cit.,
makes the same point regarding the shift in burden of
proof, p. 16.
52. 18 Fed. Reg. 2489 (1953).
72
The significant provision that the department head could
initiate an investigation was also added; moreover, the
department head was granted authority to suspend the
employee during the investigation, and dismiss him after
the investigation if he deemed it necessary.
In order to provide guidelines for judging whether
an employee might be a security risk, Executive Order No.
10450 established the following criteria;
1. The unsuitability of the employee, and his
susceptibility to being subjected to pressure.
2. Past acts of sabotage, espionage, or treason.
3. Sympathetic association with subversive
ind ividuals.
4. Advocacy of force or unconstitutional means
to overthrow the government of the United
States.
5. Membership in or sympathetic association with
subversive groups.
6. Violation of security regulations.
7. Disloyalty.
8. Assertion of the constitutional privilege
against self-incrimination in a hearing before
an administrative board or legislative body.
The final addition to the Eisenhower Program
consisted of a set of Civil Service regulations supple
menting Public Law 733 and Executive Order No. 10450.
These regulations authorized the removal of any employee
whose conduct was such that his removal would promote the
efficiency of the service. Permanent classified employees
73
were guaranteed the right to receive notice of charges, to
file an answer and affidavits, to receive written notifica
tion of the decision on action to be taken and reasons for
such action, and to appeal an adverse decision. The em
ployee was not, however, granted the right to confront
witnesses, nor was a trial or hearing made obligatory.
Either of the latter two might be granted solely at the
discretion of the department head.
Department of Defense Security Program. Inaugu
rated under this legislative and regulatory framework were
a number of specific loyalty and security programs, two of
which require some analysis to provide background for dis
missal cases. These are the Department of Defense Indus
trial Security Program and the Port Security Program.
A major problem arising under the Department of
Defense Program involved access to classified information,
with many allegedly arbitrary judgments and dismissals
being effected under the security legislation indicated
above. However, the opinion in Greene v. M c E l r o y ^ pro
scribed many of the arbitrary practices, and led to greater
specification in the Department of Defense Program. This
modification was accomplished by Executive Order No. 10865
53. 360 U.S. 474 (1959). For an extensive dis
cussion of facts and opinion of the case see pp. 108-113
infra.
74
of February 20, 1959.^ It authorized the Secretary of
Defense and other agency heads to issue regulations
prescribing specific requirements and restrictions needed
to protect releases of classified information to or within
United States industry. Agency heads were authorized to
grant access only when they had determined that it was
"clearly consistent with the national interest" to do so.
Perhaps the most important revision instituted by Executive
Order No. 10865 was that it provided safeguards for em
ployees whose access to classified information was revoked.
These safeguards included:
1. Requirement of a written statement of reasons
why access was denied or revoked.
2. A reasonable opportunity to reply in writing
to the charges.
3. The opportunity to appear personally before
the agency head.
4. A reasonable time to prepare for such an appear
ance .
5. Opportunity to be represented by counsel.
6. Opportunity to cross-examine witnesses.
7. Requirement of a written notice of final dis
position of the case.
It must be noted, however, that the right to cross-
examination was not as complete as that guaranteed in full
judicial proceedings. First, the right might be withheld
54. 25 Fed. Reg. 1583 (1960).
75
if the department head certified the informant to be a
confidential informant the disclosure of whose identity
would be harmful to the national interest. Second, the
right might be withheld if the department head determined
that the statement was reliable and the person furnishing
the statement was unable to appear. The Order specified
that "any determination adverse to the individual concerned
shall be a determination in terms of the national interest
and in no sense a determination as to the loyalty of the
individual.
The Port Security Program. Statutory authority for
the Port Security Program was contained in the Magnuson
Act of 1950,^^ which provided that if the President deter
mined that the security of the United States was endangered
he might institute such measures and issue such rules and
regulations as he considered necessary
to safeguard against destruction, loss, or injury
from sabotage or other subversive acts, accidents,
or other causes of similar nature, vessels, har
bors, ports, and waterfront facilities in the
55. The mere assertion that dismissal does not re
flect on the loyalty of the individual does not, however,
assure that this will be the case, and several decisions
have held that a dismissal was invalid because the dis
missal attached a "stigma" of disloyalty to the individual.
For a discussion of these cases, see pp. 175-186, infra.
56. 64 St. 427 (1950), 5 U.S.C. Sec. 191 (1958).
76
United States, the Canal Zone, and all territory
and water, continental or insular, subject to
the jurisdiction of the United States.57
The Magnuson Act was implemented in October, 1950,
58
when President Truman issued Executive Order No. 10173.
This Order provided that no person was to be certified for
employment on a United States merchant vessel unless the
Commandant of the Coast Guard was satisfied that the
presence of the individual on board "would not be inimical
to the security of the United States." In order to facili
tate the enforcement of the Order, possession of an iden
tification card was made mandatory for admission to a
waterfront facility. Finally, the Act established pro
cedures and standards for dismissal or revocation of
clearance similar to those of the Department of Defense
Program.
Before analyzing judicial interpretation of these
statutory provisions, some attention must be given the
political temper of the time, for the prevailing mood of
fear and suspicion certainly had an impact on judicial as
well as legislative output. "In the midsummer of 1948,
when the Loyalty Program first began to function, the
57. 64 St. 427 (1950).
58. 15 Fed. Reg. 7005 (1950), as amended by Execu
tive Order No. 10277, 16 Fed. Reg. 7537 (1951), and Execu
tive Order No. 10352, 17 Fed. Reg. 4607 (1952).
77
political atmosphere in Washington, like the weather, was
superheated."^9
For a number of reasons it did not soon cool down.
The Alger Hiss case, the arrest for atomic espionage of
Klaus Fuchs, the conviction of Ethel and Julius Rosenberg
for turning atomic secrets over to a foreign power, Soviet
advances in Eastern Europe, and the fall of China to the
Communists, among other factors, all contributed to public
willingness to accept the "conspiracy theory" as an ex
planation of these developments.®®
The leading proponent of the "conspiracy theory"
was Senator Joseph McCarthy of Wisconsin, who was ulti
mately to label as Communists "the whole group of twisted-
thinking New Dealers who have led America near to ruin at
home and abroad."®-*- Such was the impact of McCarthy's
charges, and such was public and political support for his
position, that Richard Rovere could write:
He held two Presidents captive--or as nearly
captive as any Presidents of the United States
have ever been held; in their conduct of the
nation's affairs, Harry S. Truman and IXfight
D. Eisenhower, from early 1950 through late
1954, could never act without weighing the
59. Bontecou, op. cit., pp. 101-2.
60. Eric F. Goldman, The Crucial Decade--And After
(New York: Vintage Books, 1956), pp. 137-44.
61. Ibid., p. 144.
78
effect of their plans upon McCarthy, and the
forces he led, and in consequence there were
times when, because of this man, they could not
act at all.62
McCarthy's impact was not confined to public policy.
"Directly or indirectly ... he seemed to inflict a mood
z:o
of fear and suspicion on American life as a whole."
It is not suggested that judicial decisions made
during this period were made out of fear or direct intimi
dation. It is suggested, however, that courts do not
decide cases in a political and social vacuum. Neither
judges nor legislators are completely free in the manner
in which they will act. Both "are required by the com
munity to behave in a certain way."^
How the courts did in fact behave may now be traced
through analysis of cases arising under the Loyalty and
Security Program.
62. Richard Rovere, Senator Joe McCarthy (New
York: Meridian Books, I960), p. 5.
63. Michael Paul Rogin, The Intellectuals and
McCarthy: The Radical Specter (Cambridge, Mass.: The M.I.T.
Press, 1967), pp. 1-2.
64. Jack W. Peltason, Federal Courts in the
Political Process (Garden City, New York: Doubleday, 1955),
p. 5. See also Victor G. Rosenblum, Law as a Political
Instrument (New York: Random House, 1955), Chap. I; and
Robert Jackson, The Supreme Court in th:*. American System
of Government (Cambridge, Mass.: Harvard University Press,
1955), Chap. III.
79
Cases and Precedents Arising under
the Loyalty and Security Programs
The Early Cases. Among the earliest cases was
United States v. Lovett,^ which arose out of an attempt
by Congress to utilize the "Appropriation Act" provision
of the amended Section 9-A of the Hatch Act^6 as a
"substitute for the executive dismissal power."^7 Pursuant
to Section 9-A Congress had, under Section 304 of the
Urgent Deficiency Appropriation Act of 1943, attempted
to withhold compensation from three Federal employees on
the grounds that they were subversives. Plaintiffs sought
monetary compensation and reinstatement in the Court of
Claims. The Supreme Court sustained the judgment in their
favor on grounds that the legislation constituted a bill
of attainder. In so doing, the Court avoided ruling di
rectly on the constitutionality of dismissal procedures
stipulated in the loyalty and security legislation.
Also in 1946 the courts decided a case involving a
65. 328 U.S. 303 (1946).
66. 69 St. 624-5 (1955). The relevant provision
states :that "no part of the funds appropriated by any Act
of Congress . . . shall be used to pay the compensation of
such person." [who is a member of a political party or or
ganization which advocates the overthrow of the constitu
tional form of government practiced in the United States].
67. Slotnick, op. cit., p. 12.
68. 57 St. 450 (1943).
80
69
dismissal under the War Service Regulations of 1942.
Plaintiff Friedman was discharged from his position as
chief of the classification division of the War Manpower
Commission because of a "reasonable doubt" as to his
loyalty. The court upheld the discharge of Friedman, who
was not a member of the classified Civil Service. It ruled
that the government has a right to employ such persons as
it deems necessary to aid in carrying on public business,
and has the further right to prescribe qualifications for
employees and to attach conditions to their continued em
ployment. In confining itself to a consideration of the
procedural questions involved, the court held that both
the exercise of authority under the statute and also the
statute itself were constitutional. "We are not concerned
here with the question as to whether Friedman was in fact
disloyal. Under the regulation he could have been removed
from service if the Commission had reasonable doubt as to
his loyalty." The court further asserted that "it has
long been held that the courts will not review managerial
acts, not clearly arbitrary, of executive officials per
formed within the scope of their authority."70
69. Friedman v. Schwellenbach, 159 F. 2d (D.C. Cir.
1946), cert, denied, 330 U.S. 838 (1947).
70. 159 F. 2d (D.C. Cir. 1946).
i
81
The Bailey Case. According to Slotnick, Bailey v.
Richardson^ is the only case involving dismissal of a
Federal civilian employee under the Truman and Eisenhower
Programs "in which the highest appellate court to write an
opinion fully discussed and ruled on constitutional
issues."72
Miss Dorothy Bailey had been dismissed for alleged
Communist affiliations in violation of regulatory and
statutory provisions. She had been granted hearings before
a Regional Board and the Loyalty Review Board. In both
instances, Miss Bailey had herself appeared and testified,
and had presented witnesses and affidavits testifying to
her loyalty. No one was presented to testify against her,
nor did the government reveal the names of those who had
informed against her or the means by which the alleged
disloyal activities were detected. Plaintiff's action for
declaratory judgment and for an order directing her rein
statement was brought in the Federal District Court. The
ruling by that court denying relief was appealed to the
Court of Appeals.
The Case Before the Court of Appeals. It is at this
71. 182 F. 2nd 46 (D.C. Cir. 1950), affirmed, 341
U.S. 908 (1951).
72. Slotnick, op. cit., p. 28.
82
level in the Bailey case that a court for the first time
squarely faced some of the constitutional issues involved
in a dismissal for disloyalty or for security reasons. It
was granted that Miss Bailey was not given a trial in any
sense, and was not allowed to confront those who informed
on her. However, in the opinion of Judge Prettyman, "the
question is not whether she had a trial. The question is
whether she should have had one."^
The basic issues, as seen by the court, involved
whether or not the procedure followed by the Regional
Board and the Loyalty Review Board in ascertaining grounds
upon which the dismissal was based conformed to the pro
visions of Executive Order No. 9835. One issue revolved
around use of the word "evidence," with the court con
cluding that use of the word in the Executive Order did not
mean evidence in the jurisprudential sense, but rather
meant simply information. Further, the court held that the
specificity of charges required by the Executive Order was
sufficiently discretionary that the names, dates, or places
relevant to the dismissal did not need to be disclosed.
To this point, the court had still confined itself
to a consideration of procedural issues, for plaintiff was
actually contesting the three-year ban on further govern
ment employment imposed on her, and not the constitution
ality of either the statutes or regulations, nor her
73. 182 F. 2nd 46 (D.C. Cir. 1950), at 51.
dismissal under them. "However, the court in Bailey,
conceivably as obiter dicta, did undertake the constitu
tional issues.
One of these issues involved the Sixth Amendment,
and the question of whether jury trial and confrontation
of witnesses was a right guaranteed to employees dismissed
from Federal employment. The court answered this in the
negative, holding that only if removal or its consequences
inflict punishment, thus making the removal procedure in
effect a criminal trial, would the Sixth Amendment pro
tections apply. "Removal alone is not punishment. . . .
Something more is needed to invoke the Amendment, and it
is doubtful whether the loss of reputation and narrowed
opportunity for re-employment, which attend dismissal, can
supply it."75
The court also considered the question of whether
the Fifth Amendment required that plaintiff be afforded a
hearing of a quasi-judicial type before being dismissed.
Again the court denied such a requirement, asserting that
government employment constituted neither property, lib
erty, nor life, and therefore the due process clause did
not apply. Moreover, the Fifth Amendment is not appli
cable unless the person is deprived of something to which
74. Slotnick, op. cit., p. 30.
75. "Recent Decisions, Constitutional Law," Michi
gan Law Review, L, No. 5 (March, 1952), p. 769.
84
he has a constitutional right.
A third constitutional issue was whether Miss
Bailey's dismissal impinged on the constitutional guaran
tees of freedom of speech and association protected by the
First Amendment. Reliance on the First Amendment must be
based on the reasoning that "there will be an unavoidable
restraint on speech if the standard of dismissal is mere
suspicion of disloyalty."^ This argument was rejected on
grounds that the government has the authority to regulate
the conduct of employees concerning their political be
liefs, activities, and affiliations.
A point involving an essential part of the Truman
Loyalty Program constitutes a fourth constitutional ques
tion, with the court upholding the provision that an
employee may be removed if reasonable grounds exist for
believing the employee is disloyal. Inasmuch as govern
ment employment is not a constitutional right, it is not
necessary that the government demonstrate the existence of
a clear and present danger arising from the political
activity or speech of the employee before dismissal is
legitimate. In reaching this conclusion, the court
"appeared to say" that alleged membership in the Communist
Party or other subversive organizations was reasonable
grounds for suspicion of disloyalty, and "not an instance
76. Ibid., p. 768.
85
of invalid discrimination."77
This reasoning is criticized by Sherman,78 whG sug
gests that the clear and present danger test should be
applied to dismissal of government employees.
. . . the principle which must govern the courts
as to which restriction on the government em
ployee is permissible or not permissible, in
volves, in the same way as other cases which are
touched by the First Amendment, the balancing
against each other of two very important social
interests. The clear and present danger test
should be applied to the government employee,
and becomes essential if we value personal
freedom. ... 79
The comments of Judge Prettyman strongly supported
the exercise of broad executive discretion, and asserted
the principle that "insofar as the circumstances imposed
hardship upon the individual, the exigencies of government,
in the public interest and under current conditions must
prevail, as they always must when a similar clash
arises.
In a dissenting opinion Judge Edgerton asserted
77. Slotnick, op. cit., p. 31.
78. Edward H. Sherman, "Loyalty and the Civil
Servant," Rocky Mountain Law Review, XX, No. 4 (June,
1948), p. 394.
79. Ibid., p. 394.
80. 182 F. 2nd 46 (D.C. Cir. 1950), at 64. For
the assertion of this principle involving different cir
cumstances, see the discussion of Cafeteria Workers v.
McElroy, pp. 113-118, infra.
86
that the majority was in error since the Executive Order
under which the dismissal was accomplished did require the
presentation of evidence and also the opportunity for
cross-examination. Further, he contended that dismissal
for suspicion of disloyalty does in fact constitute punish
ment, and therefore makes compulsory the observance of the
same safeguards required in any judicial procedure where
the defendant is subject to punishment. Finally, the
dismissal should have been held unconstitutional inasmuch
as the employee had been denied the constitutionally-
protected rights of freedom of speech and association.
The Supreme Court, by a 4-4 vote, affirmed without
opinion the decision of the Court of Appeals, thus de
clining once again to rule directly on the constitutional
issues. As already indicated, criticism was directed at
the Court both for failure to reverse the dismissal as
81
well as for failure to rule on the constitutional issues.
The decision, however, was not without support. It
is suggested by The George Washington Law Review that
"interference by the courts with the executive department
in the performance of ordinary duties would be productive
of nothing but mischief. . . . The Court followed settled
precedent and sound reasoning in the disposition of the
81. See Sherman, op. cit.; "Recent Decisions,"
Michigan Law Review, op. cit.; and Slotnick, op. cit.
87
case."82 The University of Pennsylvania Law Review makes
a similar assertion, and suggests further that the court
was correct in rejecting the claim that disloyalty dis
missals require all the protections of due process.The
court "correctly reasoned" that it is not any stigma
attached to the reputation of the employee which consti
tutes punishment, but rather a bar to future employment.
This interpretation preserves the vital distinc
tion between the appointive power's right to
discharge at pleasure, and the right to bar from
future employment. . . . This decision has, by
cogent and precise reasoning, perpetuated both
Constitutional guarantees and politically prac
tical necessities.84
The Supreme Court Cases. A series of subsequent
Supreme Court decisions cast doubts on the validity of the
categorical statement that "there is no constitutionally
protected right to public employment," and suggest the
principle that "constitutional protection does extend to
the public servant whose exclusion pursuant to a statute
82. "Recent Cases. Constitutional Law. Dismiss
als Under Loyalty Program," XIX, No. 6 (June, 1951),
p. 716.
83. "Recent Cases. Loyalty Program: Right to a
Trial Upon Dismissal," IC, No. 1 (October, 1950), p. 99.
84. Ibid., pp. 99, 100.
88
is patently arbitrary or discriminatory."85 However, des
pite modifications under specific factual circumstances of
the Bailey decision, the Supreme Court did not establish
any clear guidelines governing dismissals, nor did it
squarely face the constitutional issues.
The first dismissal case heard by the Supreme Court
86
after Bailey was Peters v. Hobby. Plaintiff was Dr. John
Peters, Senior Professor of Medicine at Yale University,
who had been employed as a special consultant with the
United States Public Health Service in a position con
sidered to be neither classified, confidential, nor sensi
tive. Although he had twice been cleared by the Agency
Security Board, the Loyalty Review Board of the Civil
Service Commission, acting entirely on its own, determined
that there existed a reasonable doubt as to Peters' loyal
ty, informed him of this decision, and notified him of a
three-year debarment from government employment.
Peters challenged his removal and debarment, claim
ing that the action of the Loyalty Review Board was in
violation of Executive Order No. 9835. Specifically, he
asserted that he had been afforded no opportunity to
85. Slochower v. Board of Education, 350 U.S. 551
(1966), at 555-6. A similar opinion is also found in
Wieman v. Updegraff, 344 U.S. 183 (1952). These cases
will be discussed fully in Chapter IV.
86. 349 U.S. 331 (1955).
89
confront his accusers, that his debarment violated the
prohibitions against ex post facto laws and bills of
attainder, and that his removal and debarment solely on
the basis of his political beliefs and opinions violated
his constitutional right of freedom of speech and ex
pression.
The Supreme Court granted certiorari "because the
case appeared to present the same constitutional questions
left unresolved by this Court's action in Bailey v.
Richardson."®7 For those who desired a direct Supreme
Court ruling on a basic constitutional issue, "hopes for
[a ruling on] confrontation [of witnesses] were high."®®
Moreover, Chief Justice Earl Warren had replaced Chief
Justice Fred Vinson, a negative vote in the Bailey deci
sion. In view of its own reason for granting certiorari,
"surprisingly . . . the Supreme Court . . . did not pass
on the constitutional issues raised,"®^ ruling only that
the action of the Loyalty Review Board was patently in
violation of the Executive Order. By the terse statement
87. Ibid., at 333.
88. Joseph L. Rauh, Jr., "Nonconfrontation in
Security Cases," Virginia Law Review, VL, No. 6 (October,
1959), p. 1178.
89. "Notes. Constitutional Law: Relation of the
Supreme Court and the Executive in the Federal Loyalty
Program," Cornell Law Quarterly, XLII, No. 1 (Fall, 1956),
p. 91.
90
that "... the constitutionality of the Order itself
does not come into issue,"90 the basic question of consti
tutionality was put aside, Chief Justice Warren's majority
opinion applying the rule that "the Court will decline to
anticipate a question of constitutional law in advance of
the necessity of dealing with it."91
Nevertheless, it is suggested that one significant
substantive point did emerge from Peters in clarifying the
Bailey decision. In the latter, the Court of Appeals
virtually abdicated the entire area encompassed
by the Federal Loyalty Program to the President
and Congress. As to the President, the Court
adopted the view that "... the policy is his
to make. The responsibility in this field is
his, and the power to meet it must be his."
The President s long-standing power to dismiss
executive employees allows him to make any rule
that he wants as to dismissal for disloyalty.
This decision did not place any apparent con
stitutional limitations on the power of the
executive.92
Peters clarifies this ruling by indicating that
while the Supreme Court "may recognize the authority of
the President in the area of Federal loyalty, it will
recognize no other," and implies that "the Court, and not
the Loyalty Review Board or any other agency of the
90. 349 U. S. 331 (1955), at 338.
91• Ibid-
92. "Notes. Constitutional Law," Cornell Law
Quarterly, op. cit., quoting 182 F. 2nd 46 (D.C. Cir.
1950), at 65.
91
Executive Branch below the President, himself, shall deter
mine the extent of the grant of power in this a r e a ."93
94
In 1956 the Court decided Cole v. Young, a case
lacking the constitutional issues present in Bailey and
Peters. Rather, the case involved an interpretation of
Public Law 733 and Executive Order No. 10450.^ Cole, a
preference-eligible veteran, had been dismissed from a
classified Civil Service position as a food and drug in
spector for the Department of Health, Education, and Wel
fare on grounds that his employment was not "clearly con
sistent with the interests of national security." Cole
appealed to the Civil Service Commission, which rejected
his appeal, holding that the right to appeal was not ap
plicable to dismissals under Public Law 733. The Supreme
Court, confining itself to the specific issue presented in
the case, held that Public Law 733 applied only to sensi
tive positions, and that in the absence of any express
finding of sensitivity, any doubt must be resolved in
favor of the employee. However, Executive Order No. 10450
required agency heads to discharge employees of doubtful
93. Ibid., pp. 98-99. For a more complete analysis
of the case see also "Federal Employment and the First
Amendment," Washington University Law Quarterly, Vol.
1962, No. 3 (June, 1962), pp. 432-42.
94. 351 U.S. 536 (1956).
95. See pp. 71-73 supra for provisions.
92
loyalty, regardless of the character of the job or its
relationship to national security. Without, then, ruling
on the constitutionality of either the statute, Executive
Order, or action taken under them, the Court held simply
that Cole was entitled to a hearing on charges of dis
loyalty.
Service v. Dulles also involved interpretation of
an Executive Order rather than the resolution of basic
constitutional issues. Service, a Foreign Service Officer
who had served in China, had been cleared three times by
the Department of State and once by the Loyalty Security
Board. A second hearing by the Loyalty Security Board
resulted in the determination that Service was a security
risk, and upon advice of the Board, he was dismissed by
the Secretary of State. In effecting the dismissal, the
Secretary of State relied solely on the findings of the
Board, and conducted no independent inquiry before ordering
the dismissal under provisions of Executive Order No.
9835.97
In voiding the dismissal, the Court held that by
failing to conduct an independent inquiry the Secretary
of State had violated procedures which he himself had es
tablished under the authority of the Executive Order, and
96. 354 U. S. 363 (1957).
97. 12 Fed. Reg. 1935 (1947), 5 U.S.C. Sec. 631
(1952). See pp. 68-69 supra for provisions.
93
that therefore the dismissal was invalid. The Court did
not, however, consider the constitutionality of the Execu
tive Order or whether the dismissal had violated the
protections of due process.
A final case involving a similar issue, Vitarelli
no
v. Seaton, was heard in 1958. Petitioner had been dis
charged from his position as an education and training
consultant with the Interior Department, a position not
designated as sensitive. Under the applicable regulations,
the Department head could have dismissed Vitarelli without
reason, but chose instead to indicate reasons. Having
once given reasons, the Department then failed to follow
the procedures it had established, and Vitarelli appealed
the dismissal. While the case was pending, the Department
sent a second notice of dismissal, revising the grounds
upon which the original dismissal had been made. The
Court ruled that Vitarelli must be reinstated since the
Department had violated procedures it had set up. The
Court also disallowed the sending of a second notice, with
different reasons, as grounds for dismissal.
In summary, it may be stated that each of these
Supreme Court cases was decided on narrow grounds, and
that they do not, either individually or collectively,
98. 359 U. S. 535 (1959).
94
afford any positive guidelines for determining the degree
of protection afforded dismissed Federal employees. In
order to identify any applicable guidelines, it is neces
sary to extract guidelines established in other decisions
involving First Amendment freedoms and due process, and
then apply them to "the peculiar circumstances of the
Federal employee.
The Lower Federal Court Cases. A series of cases
involving loyalty and security dismissals was decided by
the lower Federal courts, the significant features of which
may be summarized briefly. In Jason v. Summerfield.^QQ
the Circuit Court for the District of Columbia reiterated
the view that there is no vested right to Federal govern
ment employment. On this basis, the court ruled specif
ically that clearance of an employee under the original
standards of the Truman Loyalty Program authorizing dis
missal if "reasonable grounds exist for belief that the
person involved is disloyal" does not preclude a
99. "Federal Employment and the First Amendment,"
Washington University Law Quarterly, op. p. 435.
Most of the decisions involving the First Amendment free
doms will be considered in Chapter IV, and their applica
tion to the "peculiar circumstances of the Federal
employee" will be undertaken there and in the Conclusion.
100. 214 F. 2nd 273 (D.C. Cir.), cert, denied, 348
U„S. 840 (1954).
95
re-examination and subsequent dismissal under the amended
standard authorizing removal if "there is reasonable doubt
as to the loyalty of the person involved." Extending this
reasoning, there would presumably exist no barriers to the
dismissal of an employee cleared under both standards, in
the event that additional criteria were later added.
A series of related cases resulted from attempts by
discharged employees to have the Executive Orders under
which they were discharged declared unconstitutional. None
of these attempts was successful, although not all the dis
missals were upheld. In Kutcher v. Gray^^ the court dis
allowed a discharge made solely on the evidence that the
employee was a member of an organization designated by the
Attorney General as advocating forcible overthrow of the
government. The court did not invalidate the Order under
which the dismissal had been made, but asserted merely
that the discharge was not valid absent a specific finding
by the agency head of reasonable grounds for belief that
the employee was disloyal.
Kutcher v. Higley^-^^ presented a different set of
reasons for judicial disallowance of a dismissal in a
similar fact situation. Plaintiff had been charged with
being a member of, employed by, and a contributor to an
101. 199 F. 2nd (D.C. Cir. 1952).
102. 235 F. 2nd 505 (D.C. Cir. 1956).
96
organization listed by the Attorney General as subversive.
Dismissal was based on the grounds that the organization
itself advocated overthrow of the government by unconsti
tutional means, and that the employee was aware of and
consciously supported these aims. Again the court declined
to rule on the constitutionality of the Executive Order and
held the dismissal invalid since the reasons given for the
discharge differed substantially from the charges against
the employee.
Another challenge to the dismissal procedures
stipulated in an Executive Order was presented in Coleman
103
v. Brucker, which resulted in the ruling that letters
to employees stating that their continued employment would
not be clearly consistent with the national security were
insufficient as a procedure. Documentation of "findings"
required by the Order must include more than a letter con
cluding that the employee is a security risk and notifying
him of this determination.
Two other cases in this series deserve mention. In
Scher v. Weeks^^ the court upheld the dismissal of a
Commerce Department employee under a McCarran Rider author
izing the dismissal of any employee when the head of the
department deems it "necessary and advisable in the best
103. 258 F. 2nd 661 (D.C. Cir. 1958).
104. 231 F. 2nd 494 (D.C. Cir.) cert, denied,
U.S. 973 (1956).
97
interest of the United States." The court commented, how
ever, that such a dismissal carried no implication that
the employee might be either a security or a disloyalty
risk.^®^ That a dismissal might be effected on grounds
other than demonstration of disloyalty was confirmed by the
decision in Garvin v. Gilliland^^ which upheld a dis
missal, not for disloyalty, but for alleged false state
ments in the application for employment by a negative reply
to a question regarding membership in a Communist organiza
tion. Under such circumstances the employee is not en
titled to the procedures of notice, hearing, and appeal
provided for under Executive Order No. 9835.
Summary and Evaluation of Loyalty
and Security Program Cases
Inasmuch as most of the cases involving dismissals
under the Loyalty and Security Programs, whether decided by
the Supreme Court or the lower Federal courts, were decided
on narrow grounds, few general principles and guidelines
may be drawn from them. However, "one glaring generaliza
tion still prevails and that is that in almost every loyal
ty and security program . . . there is a provision for the
105. This raises the problem of the implication of
disloyalty and "stigma," which is more fully considered in
Greene v. McElroy, pp.108-113 infra, and Cafeteria Workers
v. McElroy, pp. 113-118 infra.
106. 14 F. Supp. 393 (D.C. Cir. 1956).
98
use of undisclosed confidential information."1®^
This assertion is supported by Joseph L. Rauh in his
analysis of the problem of non-confrontation in security
108
cases. Adoption of this practice can be traced, says
Rauh, to the inception of the Loyalty-Security Programs and
a decision by Seth W. Richardson, first chairman of the
Loyalty Review Board. Richardson, seeking the cooperation
of the FBI in obtaining information, was told that such
cooperation would not be forthcoming "unless the facts re
ceived in confidence by the investigators can be kept
entirely confidential at all times and under all circum
stances."-*-®^ The alternatives were "this or no program,1 1
so the policy of non-confrontation was established and was
soon extended to "all the loyalty-security programs in the
nation. . . . "H® Subsequent statute and case law have
both, however, curtailed to some degree the use of such
information, and as a consequence the chance for summary
and arbitrary action has been minimized.
As extracted from the cases considered above, these
general principles may be recognized:
107. Slotnick, op. cit., p. 48.
108. Rauh, op. cit., pp. 1175-90.
109. Ibid., p. 1175.
110. Ibid., p. 1176.
99
1. As determined in the Bailey decision, the due
process clause places no "apparent constitu
tional limitations on the power of the Execu
tive" in regard to security-risk dismissals.HI
2. The Bailey precedent has never been overruled
(with the exception of dismissals involving non
sensitive positions) but the civilian employee
is entitled to some protection by the require
ment that procedures established by statute or
Executive Order must be followed in effecting
a dismissal.
3. It was also established by this series of deci
sions that the Supreme Court will "thoroughly
scrutinize a security-risk dismissal and demand
that the action of the dismissing official
strictly comply" with the applicable Executive
Order, and the Executive Order with Public Law
733.112 in his comment on this development,
Slotnick observes that this progression should
be taken at least one step further, "so that
the Court would demand that Public Law 733
strictly comply with the Constitution. However,
the Supreme Court has not as yet reached this
stage. 113
4. Where t' ^re must be a determination of the ex
tent of Presidential discretion in dismissals,
the Court will make the determination, rather
than defer to the Loyalty Review Board or any
other agency in the Executive Branch.H4
5. Finally, it has been established that dismissals
under the Loyalty and Security Programs are
limited to sensitive positions, and that dis
missals from such positions must follow the
procedures prescribed by Public Law 733.
111. "Notes. Constitutional Law." Cornell Law
Quarterly, op. cit., p. 98.
112. Slotnick, op. cit., p. 48.
113. Ibid.
114. "Notes. Constitutional Law," Cornell Law
Quarterly, op. cit., p. 90.
100
While these guidelines did, then, establish a mini
mum of protection by requiring that certain administrative
procedures be followed, they did not solve the problems
created by the existence of great inconsistencies in the
procedures established by the various agencies. Nor, more
importantly, did they resolve the constitutional issues
raised.
Cases Involving Dismissal of Employees
of Private Contractors Doing
Business with the Government
Dismissals of employees of private contractors
doing business with the government present some legal
questions beyond those considered above. These cases may
be conveniently examined under the following headings: The
Port Security cases; Access to Classified Information; and
Access to Military Installations.
Security is the basic theme present in all these
cases. The legal issues, however, differ from those con
sidered in the preceding section, for when the person dis
missed is an employee of a private contractor, the applica
tion of employment tests "must proceed through different
channels. . . . Employment tests have . . . not been
imposed directly, but instead have been stipulated in the
contracts between government and the individual corporation
101
or institution with which it was dealing.ques
tion, moreover, becomes one not directly of dismissal, but
rather of denial of access to either classified information
or government installation. By denial of access, "the
government is able to coerce the private contractor into
dismissing the employee, if not completely, at least from
performing and working under the government contract or at
the government installation.
The Port Security Cases
In order to ensure the security of ports and port
facilities and to regulate access to them, Congress
enacted laws establishing conditions and requirements
permitting entrance to such facilities, and denying access
to those who failed to meet them. Challenges to these
laws resulted in decisions by the Supreme and lower Federal
courts, at least three of which are of significance.
One provision of the Magnuson Act of 1950^^^ made
it mandatory for each person entering a port or seeking
employment there to possess a document issued under the
Port Security Program certifying clearance. In United
115. Brown, op. cit., p. 61.
116. Slotnick, op. cit., p. 19.
117. 64 St. 427 (1950). See pp. 75-76 supra for
specific provisions of this act, which was the basis of
the Port Security Program.
102
118
States v. Gray these requirements were challenged by a
group of seamen who had been charged in a criminal pro
ceeding with illegally entering restricted facilities and
accepting employment on a United States merchant vessel
without possessing the proper documents. Such docu
ments had been denied after a hearing in which the de
fendants were accused of being sympathetic to the policies
of, or being affiliated with, the Communist Party or other
subversive groups, or of being otherwise associated with
the Party as to indicate that they were poor security
risks. No particulars were cited to back up the charges.
Rejecting defendants' assertions that the Magnuson
Act was unconstitutional, the court ruled that the screen
ing procedure it authorized was a legitimate war measure,
and that the Coast Guard regulations issued to supplement
and implement the Act did not on their face constitute an
infringement of due process under the Fifth Amendment.
118. 207 F. 2nd 238 (9th Cir. 1953).
119. Ralph S. Brown, Jr., and John D. Fassett,
"Security Tests for Maritime Workers: Due Process Under
the Port Security Program," Yale Law Journal, LXII, No. 8
(July, 1953), pp. 1163-1208, note that in the early days
of the Port Security Program, "limited personnel for
enforcement made some evasion possible, including the
lending and renting of Port Security Cards to uncleared
men. Seamen without validated papers might also get tem
porary work on ships in port, because this would not in
volve the formality of signing articles for a voyage."
It was for this that the three were indicted.
103
In so doing, the court inquired into the nature and
requirements of due process, and concluded that due process
"in the context of the screening program is properly de
finable in terms of the maximum procedural safeguards which
can be afforded the individual without jeopardizing the
national security."120 nere the court relied on the doc
trine that the rights stated in the Constitution are not
absolute, and may be restricted in the interest of the
general welfare and national security.1^1 The basic issue
became, then, whether the procedures required by the
program protected national security while at the same time
protecting the rights of the individual without jeopard
izing the prevailing national interest. In the instant
case, the court held that the procedural safeguards were
not adequate, that the scant information provided the
seamen did not contain enough specifics to enable them to
refute the charges beyond a mere denial of them, and that
the providing of such information would not in any way have
jeopardized the national security. Therefore, the indict
ments were ordered dismissed. Still, no essential part of
the program was voided on any constitutional grounds.
A different set of circumstances, and also a
120. 207 F. 2nd 238 (9th Cir. 1953), at 241.
121. For another example of the assertion that in
dividual rights must give way to the public welfare and
security, see the discussion of Bailey v. Richardson, pp.
81-87 supra.
104
different ruling regarding the denial of civil rights to
122
government employees marked Parker v. Lester, probably
the most important case under the Port Security Program.
As in Gray, a group of seamen who had been denied clear
ance under the Port Security Program sought declaratory
and injunctive relief on grounds that both the requirements
and administration of the program were unconstitutional.
In Parker, however, a principal allegation by the seamen
was that the requirements of the program denied them, with
out due process of law, the liberty to pursue their occu
pations .
This claim compelled a more complete consideration
of constitutional issues, and resulted in a decision with
more far-reaching consequences. Most significantly, the
Ninth Circuit Court "squarely held that the Port Security
Program failed to meet constitutional requirements because
it did not provide for confrontation of accusers."123 To
the argument that informants might be less willing to talk
if their anonymity were not protected, the court suggested
that "it may well be that in the long run nothing but
beneficial results will come from a lessening of such
talebearing."124 yet, the court stopped well short of
122. 227 F. 2nd 708 (9th Cir. 1955).
123. Rauh, op. cit., p. 1179.
124. 227 F. 2nd 708, at 720.
105
voiding either the entire Port Security Program or authori
ty to establish a screening program by adopting a flexible
approach to the requirements of due process.
That the court accepts the fact of peril to
national security and the necessity of a Port
Security Program is clear. That it was correct
in doing so needs no comment. Our courts have
recognized that the concept of due process of
law is not rigid, requiring the same protections
for individuals in all cases, but rather elastic
enough to permit our government to protect our _
governmental institutions and our Constitution.
Finally, the fact that the procedures under the Magnuson
Act were defective "does not mean that a screening program
is legally unauthorized. It merely requires a court to
determine what authority can be implied from the language
of the . . . Act. . . .'••126
In dealing with the seamen's assertion that they
had been denied a constitutional right to pursue their
occupations, the court recognized a distinction between
the rights of a person employed directly by the government
and one employed by a private contractor doing business
with the government. The specific provisions of the Port
Security Program under which the seamen had been barred
were voided because "the liberty to follow [one's] chosen
occupation is no doubt a right more clearly entitled to
125. "Recent Decisions. Constitutional Law,"
Georgetown Law Journal, XLIV, No. 2 (January, 1956),
p. J2».
126. Brown and Fassett, op. cit., p. 1189.
106
constitutional protection than the right of a government
employee to obtain or retain his job."127
The court declined to inquire into whether or not
Congress had intended to authorize the establishment of a
screening program as developed under the Coast Guard Regu
lations. Rather, the question the court sought to answer
was: "Does the Act prescribe a sufficiently definite
standard to avoid invalidity as an improper delegation of
legislative power?, ( 128 not, inasmuch as the screen
ing process developed under the act did not meet the due
process requirements of notice, hearing, and confrontation.
Rather than appeal this adverse ruling, the govern
ment simply amended the Coast Guard regulations to make
them conform to the conditions stipulated in Parker by the
requirement that "every effort shall be made to produce
material witnesses ... in order that such witnesses may
be confronted and cross-examined."129
130
Of less importance was Graham v. Richmond,
which held that refusal by a seaman to answer questions
regarding allegedly subversive activities was a factor
which might be considered in determining if his employment
127. 227 F. 2nd 708, at 717.
128. Brown and Fassett, op. cit., p. 1189.
129. 33 C.F.R. Sec. 125.43 (F) (Supp. 1959).
130. 272 F. 2nd 517 (D.C. Cir. 1959).
107
would be inimical to the best interests of the United
States. However, the court held that such a refusal in
and of itself could not automatically disqualify a person.
The Classified Information Cases
A concomitant of the increasing importance of tech
nological information to national security has been the
problem of assuring wide enough dissemination of this in
formation to take full advantage of all possible applica
tions, while at the same time preventing its acquisition
by sources which might constitute a threat to United
States security. The problems are compounded by the fact
that many employees holding jobs which require access to
classified information are not directly employed by the
Federal government, but are rather employees of private
contractors doing business with the government.
Most of the cases challenging restrictions on
access to classified information have arisen under the
Department of Defense Industrial Security Program, with
the majority of early cases decided on procedural grounds.
One dismissal was allowed because of agency failure to
effectively serve the named defendants with notifica-
1 11
tion. Another ruling ordered a stay of proceedings
against dismissal until all administrative remedies had
131. Bessel v. Clyde, 260 F. 2nd 240 (3rd Cir.
1958).
108
132
been exhausted. In a third ruling the court refused to
reverse a dismissal made in the interests of national
security on grounds that the constitutional requirements
of due process were not mandatory in dismissal procedures
under the Industrial Security Program; moreover, even if
certain requirements of due process were mandatory, this
did not compel confrontation by witnesses as is required
133
in criminal proceedings.
While these early cases were decided on narrow
grounds which did not involve basic constitutional issues,
a case reached the Supreme Court in 1959 in which the Court
recognized, if it did not resolve, the constitutional
issues involved. This case was Greene v. McElroy.
Greene v. McElroy. Greene was Vice-President and
General Manager of a firm known as ERCO, devoted to de
veloping and manufacturing electronic products for the
Navy. Much of the information classified as "secret" had
been developed by Greene himself. Although he had previ
ously been cleared four times between 1949 and 1952, the
question of his loyalty was reopened in 1953. Subsequently
the Secretary of the Navy advised ERCO that he had reviewed
132. Cohen v. Leone, 18 F.R.D. 494 (E.D. Pa. 1955).
133. Dressier v. Wilson, 155 F. Supp. 373 (D.C.
Cir. 1957).
134. 360 U.S. 474 (1959).
109
Greene's case, and had concluded that his continued access
to classified information was "inconsistent with the best
interests of national security." Because he was denied
security clearance, upon which his job depended, Greene was
discharged, and was unable to obtain any other work as an
aeronautical engineer.
When, after a year, Greene finally obtained a hear
ing, it was established that evidence leading to his
removal consisted primarily of "summaries of statements
made by anonymous informers."135 -phe majority of the alle
gations concerned his association with his former wife (an
alleged Communist from whom he had been divorced in 1947)
and contacts he had made through her and through ERCO.
"Most of the associations were, of course, true, but
readily explicable as social and business relationships
without sinister content."136 Greene presented witnesses
to testify as to his loyalty, but the names of those who
had testified against him were withheld by the hearing
board, which upheld the determination that Greene was a
security risk. Unable to obtain a favorable judgment in
the lower courts, Greene petitioned the Supreme Court,
which granted certiorari.
135. "Recent Cases. Revocation of Industrial
Security Clearance: Due Process and the Privilege Doc
trine," Minnesota Law Review, XLIV, No. 4 (March, 1960),
p. 772.
136. Rauh, op. cit., p. 1180.
110
Disagreement as to whether the Court intended to or
did in fact decide the constitutional issues is evident
both from the opinion itself and also from commentaries
analyzing the decision. Mr. Chief Justice Warren, writing
for the majority, saw the chief issue as
whether the Department of Defense has been au
thorized to create an industrial security clear
ance program under which affected persons may
lose their jobs and may be restrained in follow
ing their chosen profession on the basis of fact
determinations concerning their fitness for
clearance made in proceedings in which they are
denied the traditional procedural safeguards of
confrontation and cross-examination.13/
Two bases for a ruling emerge from this statement:
that of legislative or executive authorization for the
program, and that of due process. That Warren did not
base his opinion on the second seems evident from his
statement that
We decide only that in the absence of explicit
authorization from either the President or Con
gress the respondents were not empowered to
deprive petitioner of his job in a proceeding
in which he was not afforded the safeguards of
confrontation and cross-examination.138
Three of the five Justices constituting the majority,
Frankfurter, Harlan, and Whittaker, concurred in holding
that there was no authorization for the proceedings by
which Greene had been deprived of his security clearance,
137. 360 U. S. 474 (1959), at 493.
138. Ibid., at 508.
Ill
bat rejected the constitutional question of due process as
a basis for the decision.
In a dissenting opinion, however, Mr. Justice Clark
urged that not only had the Court in fact decided the con
stitutional issue, but also that the decision would have a
devastating effect on the Federal government's capacity to
protect its security.
While the Court disclaims deciding this consti
tutional question, no one reading the opinion
will doubt that the explicit language of its
broad sweep speaks in prophecy. Let us hope
that the winds may change. If they do not the
present temporary debacle will turn into a rout
of our national security.139
In commenting on the decision, the Harvard Law
Review noted that "once again . . . the Court had an oppor
tunity to clarify the constitutional problems involved;
once again it declined to do s o . "1^0 The Court reversed
Greene's dismissal, according to this view, on the ground
that "when administrative programs and procedures present
a strong possibility of infringement of constitutionally
protected rights, explicit congressional or presidential
authorization for them is necessary."141 What the limits
on such authorization may be, the Court does not consider.
139• Jbid., at 524.
140. "The Supreme Court, 1958 Term," Harvard Law
Review, LXXIII, No. 1 (November, 1959), p. 1971
141. Ibid., p. 198.
112
More significance is attached to the decision by
Rauh, who sees it as a clear statement that "there is a
constitutional right of confrontation and cross-examination
wherever a person's job, livelihood, and reputation are at
stake."142 Moreover, this interpretation is seen as being
in line with Court insistence on observance of due process
in all governmental action affecting substantial interests.
It can hardly be that what the Founding Fathers
required in the Sixth Amendment for the most petty
criminal transgression should be unavailable to
one involved in a far more significant proceeding
on the outcome of which depends his job, his
livelihood, and his very name.143
Even if the Court did intend its opinion to mean
only that the Defense Department was not authorized to
deny confrontation in security hearings, the decision still
has major significance. It made clear that
When national and individual interests are in
volved, the various interests can no longer be
subjected to pigeon-hole-type analyses. The
Court recognized that effect is important, and
in the future, whenever the exercise of national
security interest affects the individual interest,
the court will be forced to consider the nature
of the affected interest and not merely that of
the affecting interest.144
As a result of the decision, several changes were
142. Rauh, op. cit., p. 1183.
143. Ibid., p. 1187.
144. "Revocation of Industrial Security Clearance,"
Minnesota Law Review, op. cit., p. 786.
113
made in the Defense Department Industrial Security Pro
gram, the major thrust of which was that "confrontation
is to be the rule rather than the exception."146
Access to a Military Installation
The third aspect of the security risk problem in
volves access to a military installation, and the adjudica
tion of a case which Slotnick asserts involved "undoubtedly,
one of the greatest security risk defeats suffered by an
employee of a private contractor doing business with the
Federal government. . . . n147
This case, generally referred to as Cafeteria
Workers v. McElroy, is of enough significance to warrant
a complete presentation of the facts before analyzing the
decision and the constitutional issues raised. Rachel
Brawner was employed as a short-order cook by M & M Res
taurants, which operated a restaurant on the premises of a
naval gun factory which was under the command of a Rear
Admiral. Access to the grounds of the factory was
145. Executive Order No. 10865, 25 Fed. Reg. 1583
(1960).
146. "Revocation of Industrial Security Clearance,"
Minnesota Law Review, op. cit., p. 786.
147. Slotnick, op. cit., p. 45.
148. Cafeteria and Restaurant Workers Union, Local
473, AFL-CIO v. McElroy, 3'64 U. 5. 813 (I960) . The case
was originally heard under the same title as 284 F. 2nd
173 (1960).
114
restricted to persons authorized by the base Security
Officer, a subordinate of the Rear Admiral. One of the
provisions of the contract between M & M and the gun
factory, arising out of security regulations established
by the Security Officer, was that M & M would not hire or
retain any person who failed to meet security requirements
as determined by the Security Officer. After six years of
employment by M & M, Rachel Brawner was required to turn
in her identification badge, her only verification of
security clearance, because the Security Officer had deter
mined that she did not meet security requirements. The
Rear Admiral approved both the Security Officer's deter
mination and the resultant revocation of clearance, and
denied a hearing sought by Mrs. Brawner.
The Cafeteria Workers Union brought suit on behalf
of Mrs. Brawner to compel return of her identification
badge, but the Federal District Court dismissed the com
plaint. The District Court ruling was first reversed by
a three-judge panel of the Court of Appeals of the District
of Columbia, but was later affirmed after a hearing en banc
149 1 so
by that court. The Supreme Court granted certiorariiJW
on the basis of an alleged conflict between the decision
of the Court of Appeals and Greene v. McElroy.
149. 284 F. 2nd 173 (1960).
150. 364 U.S. 813 (1960).
115
Mr. Justice Stewart, writing for a 5-4 majority
affirming the dismissal, cited two major issues as germane
to the case: first, whether the Commanding Officer of the
gun factory was authorized to deny Mrs. Brawner access to
the installation in the way he did; second, if he was so
authorized, whether his action in excluding her consti
tuted a deprivation of any constitutional rights.
On the first issue, the Court held that the ex
plicit legislative or executive authorization for dismissal
held to be lacking in Greene must be demonstrated. Exist
ence of such authorization was asserted in the general
authority of a commanding officer to exclude at will all
persons who earned their living by working on a military
base. Two specific Navy regulations approved by the
President were also cited. One provided that, with cer
tain exceptions, the responsibility of a commanding officer
for his command is absolute; the second provided that deal
ers or tradesmen shall not be admitted to a command except
for specific purposes% as authorized by the commanding
officer.
Regarding the second issue, plaintiffs urged that
due process required that Mrs. Brawner be advised of the
specific grounds for her exclusion, and that she be
granted a hearing in order to refute the charges. In
denying that she had been deprived of any rights of due
process, the Court invoked the balancing doctrine.
116
Mr. Justice Stewart noted that in its proprietary military
capacity,
the Federal Government . . . has traditionally
exercised unfettered control.. . . This case
involves the Federal Government's dispatch of
its own internal affairs. The Court has con
sistently recognized that an interest closely
analogous to Rachel Brawner's, the interest of
a government employee in retaining his job, can
be summarily d e n i e d .151
The Court did indeed recognize that there are some consti
tutional restrictions on government in this area, but
rejected the argument that these included recognition of a
right of all government employees to notice and hearing
before removal. The dismissal in this case was held to be
neither arbitrary nor discriminatory, and did not in any
way violate the guarantees of due process.
Mr. Justice Clark, in a concurring opinion, em
phasized the last point, and added that the circumstances
of the dismissal did not imply any disloyalty on the part
of the employee, nor, therefore, did they discriminate
against future employment. Inus, due process had not been
violated.
A dissenting opinion, written by Mr. Justice
Brennan, was supported by Justices Black and Douglas and
Mr. Chief Justice Warren. The dissent expressed doubt as
to whether revocation of Mrs. Brawner's identification
151. 364 U.S. 813 (1960), at 893.
117
badge for security reasons was in fact authorized by any
existing regulations. Most of the dissent, however, was
devoted to an analysis of the constitutional issues raised
by the case. Brennan asserted that under the majority
decision Mrs. Brawner had been afforded no procedure at
all, and that therefore the guarantees of due process had
been violated. Further, he suggested that dismissal as a
security risk, despite the protestation of the majority
opinion that no stigma of disloyalty attached, carried a
"sinister connotation."
In sum, the Court holds that petitioner has a
right not to have her identification badge taken
away for an "arbitrary" reason, but no right to
be told in detail what the reason is, or to de
fend her own innocence, in order to show, perhaps,
that the true reason for deprivation was one for
bidden by the Constitution. That is an internal
contradiction to which I cannot subscribe. 1^2
The question of stigma is investigated by The George
153
Washington Law Review, which strongly criticizes the
majority opinion for not considering stigma as an issue.
It is suggested that the Constitution itself creates an
affirmative right, regardless of the nature of the in
terests affected, not to be arbitrarily injured by the
government.
152. 364 U.S. 813 (1960) at 901.
153. "Case Notes, Administrative Law. Summarily
Excluding a Private Employee from a Military Installation
Does Not Violate the Fifth Amendment," XXX, No. 1 (October,
1961), pp. 123-27.
118
The vagueness and notoriety of the term "security
risk" . . . could well be such an arbitrary in
jury. . . . Neither neighbors nor potential
future employers will be greatly impressed with
the fact that there are other categories besides
disloyalty included in that broad term.154
In view of the serious consequences of labeling a
person a security risk, it is suggested that procedural
safeguards must be scrupulously observed, and alternatives
made available to limit the injury.
The disclosure of specific grounds relied upon
would not necessarily be harmful. ... If the
reasons [for the denial of security clearance]
were valid but relatively unimportant in other
types of employment, the particular job would
be lost because of the interests involved, but
the employee would be in a much better position
to gain new employment without having to wear
the uncomfortable mantle of security r i s k . 1^5
Conclusions from Cases Involving
Dismissal of Employees of
Private Contractors
From these decisions certain conclusions may be
derived which may be summarized as follows:
1. Cafeteria Workers v. McElroy clearly estab
lished the principles that an employee of a
private contractor doing business with the
government may be denied access to a military
installation in summary fashion without spe
cific charges and without opportunity for a
hearing as to the reasons for the exclusion.
154. Ibid., p. 126.
155. Ibid., pp. 126-27.
119
2. However, in spite of the broad sweep of the
above rule, an individual may not be denied
original employment as a seaman, or denied
access to ports on grounds of being a security
risk without notice or hearing.
3. In regard to access to classified information,
an individual may not be denied access for
security reasons without the safeguards of
confrontation of specific charges and the
opportunity for cross-examination, unless
the denial of such procedures has been specif
ically authorized by the President or Congress.
4. Where the President has provided for the oppor
tunity for cross-examination, this procedure
must be followed, except in cases where the
department heads still are held to retain, in
critical situations, the power to summarily
deny access to classified information.
It is clear that some of the problems involved in
the dismissal of employees of private contractors doing
business with the government are the same as those in
volved in dismissal of a person employed directly by the
government. However, as demonstrated by the cases cited,
the dismissal route is more indirect, and the question is
often not one of actually dismissing the employee, but
rather one of denying clearance or access to either classi
fied information or government installation. This distinc
tion puts the employee of the private contractor at a
greater disadvantage, for "by this denial of clearance or
access, the government is able to coerce the private con
tractor into dismissing the employee, if not completely,
at least from performing and working under the government
120
contract and at the government installation."156 More
over, it is asserted that in reality the stigma of dis
loyalty is in fact attached to the individual dismissed as
a security risk, and even though the Court may go out of
its way to indicate that there is no such implication, such
stigma does in fact have a detrimental effect on the
ability of the employee to gain further employment in the
same field of work.
156. Slotnick, op. cit., p. 19.
CHAPTER III
DISMISSAL OF EMPLOYEES OF STATE
AND LOCAL GOVERNMENTS
The preceding Chapters indicated the basic prin
ciples, regulations, and protections governing the dis
missal of employees of the Federal government. This
Chapter will examine the extent of the rights and protec
tions afforded employees of State governments,^ and will
explore the differences in dismissal procedures and
protections between Federal and State levels. Such an
analysis requires a brief examination of the nature of the
Federal system, and in particular the problems which
federalism creates with respect to the operation of due
process of law.
The Federal System and Due Process
The essential feature of federalism is of course that
certain powers and duties are delegated to the Federal
government, while others are reserved to the States. One
1. Hereafter, State government will be used to
refer both to the government of the State itself and also
to the administrative subdivisions of State government,
such as city, county, or school districts.
121
122
general area of State jurisdiction lies in the definition
of crimes and the establishment of procedures in criminal
prosecution. However, since citizens of the States are at
2
the same time citizens of the United States, and since the
United States Constitution requires that government observe
certain procedures in prosecuting an individual, the
question arises as to whether such safeguards and re
strictions are binding on the States.
Relative to the specific question of the dismissal
of employees of State governments, the question, stated
very broadly, is whether the States may establish their
own regulations and procedures for dismissal, irrespective
of and contrary to Federal procedures established by
Constitutional provisions, laws, executive orders, and
court decisions. In order to deal with this question, it
is necessary to trace the development of due process within
the framework of the Federal system.
The Development of Due Process
It has now been established by a series of Supreme
Court decisions that certain constitutional guarantees of
due process have been made binding on the States through
the Fourteenth Amendment, the process generally referred to
as incorporation. A brief review of some of the major
2. United States Constitution, Amendment XIV,
Section 1.
123
decisions will illustrate the process of incorporation,
and will also indicate some of the principles which may be
applied by the courts when considering cases involving the
dismissal of State employees.
Two Amendments, the Fifth and Fourteenth, provide
that no person may be deprived of life, liberty, or prop
erty without due process of law. But, whereas the Fifth
Amendment, being a part of the Federal Constitution and
making no specific reference to the States, was considered
3
to be applicable to the Federal government only, the
Fourteenth Amendment specifically provides that no State
may deprive any person of life, liberty, or property with
out due process of law.
The first decision interpreting the due process
clause of the Fourteenth Amendment, which was ratified in
4
1868, came in the Slaughter-House Cases, in which a 5-4
majority, through the opinion of Mr. Justice Miller,
adopted a narrow view of the clause. The due process
provisions of the Amendment were construed so as to leave
intact the then-existing balance between the States and
Federal government: that in functions exercised by the
States under their police powers, it was up to the States,
not the Federal government, to determine whether or not
3. Barron v. Mayor and City Council of Baltimore,
32 U.S. (7 ?etTT"743 (ITO)"
4. 16 Wall. 36 (1873).
124
State action had deprived its citizens of the protections
of due process. Of greater potential importance, for it
was the view which the Court was ultimately to adopt, was
the view of the dissenting opinion of Mr. Justice Field,
who saw the basic issue as "nothing less than the question
whether the recent Amendments . . . protect the citizens
of the United States against the deprivation of the common
rights by State legislation."^
This view was to have two basic applications: one
in the area of economic and property rights, the second
in the area of individual or civil rights. The first
application resulted in a series of decisions which had the
primary effect of protecting the rights of private property
against attempts by the State to regulate its use.*’ Such
use was held to deprive an individual (or corporation) of
property without due process of law. By the late 1930's,
the particular economic doctrine which had influenced
several Justices to concur in decisions prohibiting State
regulation of business and the use of property had been
discarded. However, through the use of the due process
clause as a device for prohibiting State regulation of
5. Ibid., at 89.
6. See for example, Chicago-Milwaukee and St. Paul
R.R. Co. v. Minnesota, 134 U.S. 418 (1890); Wabash. St.
Louis and Pacific R.R. Co. v. Illinois, 188 U.S. 557
(1886); and Lochner v. New York, 198 U.S. 45 (1905).
125
economic activity, the principle that the Federal courts
may determine whether or not the States had afforded due
process of law to its citizens was well established.
The second application has come in the area of per
sonal and civil rights, giving an affirmative thrust to
the clause, rather than the negative restraining force
exerted by its application to the economic area. The
basic question, one of major importance to the operation
of the Federal system, is: "Did the Fourteenth Amendment
have the effect of incorporating the Bill of Rights, either
through the privileges and immunities clause, or by virtue
of the due process clause?"^
Incorporation did not immediately follow adoption
of the Fourteenth Amendment. In 1884, in one of the first
cases involving a challenge of State criminal proceedings
under the due process clause, the Court held that the
Fourteenth Amendment did not prohibit a State from sub
stituting a prosecutor's affidavit (an information) for
the constitutional requirement of a grand jury indictment.®
In 1908 it was held that the prohibition against self-
incrimination was not binding on the States. And as late
7. Alpheus T. Mason and William M. Beaney, American
Constitutional Law, 4th ed. (Englewood Cliffs, N.J.:
Prentice-Hall, Inc., 1968), p. 443.
8. Hurtado v. California, 110 U.S. 516 (1884).
9. Twining v. New Jersey, 211 U.S. 78 (1908).
126
as 1937, "long after the Court had agreed that the
'liberty' protected by the Fourteenth Amendment included
some of the First Amendment freedoms,"!® the Court yet
held, in Palko v. Connecticut,^ that the Fourteenth Amend
ment did not incorporate the entire Bill of Rights, specif
ically excluding from protection against State procedure
the protection against double jeopardy.
Even prior to the Palko decision, however, there
had been emerging in the Court an attitude which led to
the incorporation of the requirements of due process, an
attitude rooted in the belief that certain safeguards were
so essential that neither liberty nor justice could exist
if they were sacrificed.
This philosophy gained increasing acceptance through
a series of decisions beginning with Powell v. A l a b a m a ,
which held that in capital cases indigent, young, inexperi
enced, and illiterate defendants must receive assistance
of counsel appointed by the State, and moreover that such
appointment must be one that would insure a reasonably
adequate defense. Despite intervening cases which seemed
to inhibit incorporation, a significant step was taken in
10. Mason and Beaney, op. cit., p. 443.
11. 302 U.S. 319 (1937).
12. 287 U.S. 45 (1932).
127
13
Mapp v. Ohio, in which it was held that evidence obtained
through illegal means by State officers was inadmissible
in State criminal proceedings since it constituted a viola
tion of the procedural protections stipulated in the Bill
of Rights. In 1963, the Court extended the Powell decision
to require that the States provide counsel for indigent
14 15
defendants in all criminal cases. Escobedo v. Illinois
and Miranda v. Arizona^ asserted among other things that
due process required States to inform a person in custody
of his right to counsel, of his right to remain silent,
and of his right to counsel at pretrial interrogation.
That the States must now observe the requirements
of due process in criminal proceedings is obvious from
this brief summary. The basic question now to be inves
tigated is the extent to which the States are bound by
Federal procedures, First Amendment protections, and the
requirements of due process in cases involving dismissal
of State employees . ^
13. 367 U.S. 643 (1961).
14. Gideon v. Wainwright, 373 U.S. 335 (1963).
15. 378 U.S. 478 (1964).
16. 384 U.S. 436 (1966).
17. Even though teachers are employees of the
State or its local agencies, because of the special issues
presented, teacher dismissals will be considered separately
in Chapter IV.
128
Dismissal of State Employees
Dismissals Involving Abridgment
of First Amendment Freedoms
It has already been clearly established that the
courts, both Federal and State, have accepted the premise
that no absolute right to public employment exists. Given
this premise, evolving from a rather strict interpretation
of the McAuliffe decision,-*-® the conclusion follows readily
that the individual States may impose conditions on employ
ment which will violate rights which the First Amendment
protects against Federal infringement. Analysis of some
decisions will help to identify the principles applied by
the courts in attempting to resolve the conflicts which
arise when States attempt to apply the principles of the
McAuliffe decision at the expense of First Amendment Rights.
Dismissals of State Employees under the Hatch Act.
A series of cases resulting from dismissals of State em
ployees under provisions of the Hatch Act may be con
veniently grouped together for purposes of analysis.
The provisions of the Hatch Act bearing on the
political activity of State employees are as follows:
18. McAuliffe v. City of New Bedford, 155 Mass.
216, 29 N.E. 517 (1892). For a discussion of the facts
and opinion, see pp. 7-10, supra.
129
No officer or employee of any State or local agency
whose principal employment is in connection with
any activity financed in whole or in part by loans
or grants made by the United States or any Federal
agency shall . . . take any active part in politi
cal management or in political campaigns.19
Excepted by the Act are individuals "employed by an educa
tional or research institution, establishment, agency, or
system which is supported in whole or in part by a State
or political subdivision thereof."^
Pursuant to these provisions, the United States
Civil Service Commission has established a set of proce
dures to be followed in dismissing a State employee for
violating provisions of the Act. Upon receipt of a report
of prohibited activity, the Commission fixes a time and
place for a hearing, at which it is determined whether or
not a violation of the Act has actually taken place. If a
violation warranting removal is found, notification is
mailed to the employee and to the appropriate State agency.
If the employee is not removed within thirty days after
receipt of notification, the Commission sends an order to
the Federal agency which supplies the funds for the project
under which the person was employed, requiring the Federal
agency to withhold from the State an amount equal to twice
19. 5 U.S.C. Sec. 1502 (Supp. 1968), amending
5 U.S.C. Sec. 12-A (1958).
20. 5 U.S.C. Sec. 15 (D) (4) (b) (Supp. 1968).
130
the salary of the dismissed employee. The employee has a
right to review by the Federal District Court of any such
21
finding and order by the Civil Service Commission.
Two basic issues are involved in such a dismissal:
alleged denial of individual rights protected by the First
Amendment, and the issue of federalism. Although the issue
of federalism is still raised in some State dismissal
cases, as it related to the Hatch Act it was judicially
clearly resolved by the decision in Oklahoma v. United
22
States Civil Service Commission. In this case, Oklahoma
brought suit to review a determination of the Civil Service
Commission that a member of the State Highway Commission
had, by acting as chairman of the Democratic State Central
Committee, violated the Hatch Act. The Civil Service Com
mission directed the State to remove him, or face reduction
of Federal funds. The constitutional grounds on which the
State challenged the finding of the Civil Service Com
mission were that the Hatch Act, by attempting to regulate
internal affairs of the State, intruded upon State sover
eignty in violation of the Tenth Amendment.
The Court admitted that Congress could not directly
21. Hatch Act of 1939, Sec. 12-A, added by 54
Stat. 768 (1940), 5 U.S.C. Sec. 118 (K) (1958).
22. 330 U.S. 127 (1947). The aspects of this case
which involve the rights of the individual are discussed
at pp. 133-34, infra.
131
regulate the political activities of State employees, but
23
held that this could be legitimately done indirectly.
Since the Federal government may offer benefits to the
States on the condition of State cooperation with Federal
plans, the Court "correctly ruled" that Hatch Act provi
sions authorizing the withholding of funds "when the
recipient State does not comply with the recommendations
of the [Civil Service] Commission to remove an employee
does not constitute an infringement of the powers of the
State under the Tenth Amendment.
In reaching this conclusion, the Court relied on
25
United States v. Darby, asserting that the Tenth Amend
ment did not deprive the Federal government of its power
to use any necessary and proper means in the exercise of
a granted power to attain an allowable end. The "allowable
end" in connection with Oklahoma was defined as "better
public service," which would presumably be achieved by
"requiring those who administered funds for national needs
to abstain from active political partisanship."^
23. 330 U.S. 127 (1943) at 143.
24. "Recent Decisions," Michigan Law Review, LXI,
No. 3 (January, 1963), p. 593. The article is a review of
the relations of State and Federal governments and the
application of the Hatch Act to the political activities
of a State official.
25. 312 U.S. 100 (1941).
26. 330 U.S. 127 (1943) at 143.
132
In regard to the question of deprivation of individ
ual rights of freedom of expression and association under
the Hatch Act, it appears that the original intent of the
Act was to prevent only partisan political activity. State
government employees would be permitted to comment on
political affairs so long as their activities and comments
were not directed toward partisan party success. However,
as will be illustrated in the cases to be discussed, it is
often difficult to draw a line between partisan and non
partisan activity; moreover, where it is possible to draw
the line, this can often be done only after the act. Be
cause of these difficulties, and the resulting large number
of "gray" areas, the Hatch Act has been increasingly inter
preted as forbidding all political activity. For, although
the Act originally sought to prohibit "pernicious political
activity," Congress has ultimately "chosen to prevent all
political activity because of abuses that might arise
therefrom, and has thus relegated millions of persons to
spectator status in the political affairs determining their
welfare."^
If one accepts the premise that the right to engage
in political activity is "undeniably guaranteed by the
freedom of expression clause of the First Amendment,"^®
27. "Recent Decisions," Michigan Law Review,
op. cit.. p. 595.
28. Ibid., pp. 593-94.
133
and further, that it is reserved to the people and to the
States by the Ninth and Tenth Amendments, a clear consti
tutional issue is raised when such activity and expression
is restrained.
With respect to Federal employees, the Supreme Court
has upheld some infringement of this right as legitimate,
on the ground that First Amendment rights must be balanced
against Congressional determination that political activity
by government employees presents a danger to democratic
society.^9
This same question with regard to State employees
was considered by the courts in two significant decisions:
30
Oklahoma v. United States Civil Service Commission, and
31
Palmer v. United States Civil Service Commission. In the
Oklahoma case, the Supreme Court upheld the order of the
Civil Service Commission that funds be withheld from
Oklahoma when the State failed to discharge an employee who
had been simultaneously chairman of the Democratic Party
State Central Committee and a State Highway Commissioner
during a nine-month period when the United States had con
tributed two million dollars to the Highway Commission.
The opinion pointed out that in this case the employee's
29. United Public Workers v. Mitchell, 330 U.S. 75
(1947). See pp. 54-65, supra.
30. 330 U.S. 127 (1947).
31. 297 F. 2nd 450 (7th Cir. 1962).
134
job was made possible by and was dependent upon the Federal
program, and asserted that while a person does indeed have
a constitutional right to talk and participate in politics,
there is no corresponding right to hold a Civil Service
position.
On the basis of Oklahoma, the Michigan Law Review
has concluded that
in upholding the extension of . . . legislation
to cover State employees whose employment is
connected with activity financed by Federal
loans or grants, the Supreme Court has made it
clear that the United States is neither con
cerned with nor has the power to regulate the
political activity of State officials or em
ployees as such. . . . Rather, the courts have
consistently held that the power to prohibit
State employees from taking part in political
activity stems from Congressional power to fix
the terms on which the money allotments of the
United States shall be d i s b u r s e d .32
The decision in Palmer went further than Oklahoma
in at least one important respect, for Palmer, ordered
dismissed from a State Civil Service job for violation of
the Hatch Act, spent less than one per cent of his time
working on Federally financed projects. The Court of
Appeals, in affirming a decision of the District Court,^3
held that the application of the Hatch Act did not deprive
a dismissed employee of any vested rights under the United
32. "Recent Decisions," Michigan Law Review,
op. cit., p. 593.
33. Palmer v. United States Civil Service Com
mission, 191 F. Supp. 495 (S.b. 111. 1%1).
135
States Constitution. In reaching this conclusion, the
court declined to apply a de minimis rule, and thus
reached a decision "seemingly inconsistent with Congres
sional intention. . . . There is a definite need for re-
evaluation of an absolute prohibition of political activity
on the part of those State or local employees working in
Federally financed areas.
One suggestion for re-evaluation is that the Supreme
Court return to the principle stated in United Public
Workers v. Mitchell that the judiciary would interfere with
Congressional regulation of governmental employment only
when such regulation passed beyond the existing conception
35
of governmental power. Such an interpretation would
return to the governmental employee the right to partici
pate in politics to some degree, a desirable circumstance
in view of the increasing number of employees of both the
Federal and State governments.
Dismissals of State Employees Other Than under the
Hatch Act. A number of State court decisions have upheld
the dismissal of State employees for activities involving
exercise of rights protected by the First Amendment. For
example, the California courts have held: that a police
34. "Recent Decisions." Michigan Law Review,
op. cit., pp. 595, 596.
35. 330 U.S. 75 (1947) at 102.
136
officer must forego certain rights, including free speech,
O £
in accepting employment; that police officers are for-
37
bidden to join unions; and that any public employee may
be required to take an oath that he does not advocate
forcible overthrow of the government, nor will he so
38
advocate in the future.
Since many of these State decisions anticipate or
are based on the Supreme Court decision in Garner v. Board
39
of Public Works, the basic principles established by
that decision need to be identified. Gamer, employed by
the Los Angeles Board of Public Works, had been dismissed
for refusal to take an oath or file an affidavit required
as a condition of continued employment. The oath required
the employee to swear that within the last five years he
had not taught, advocated, or been associated with an
organization teaching or advocating, the violent overthrow
of the government. The affidavit was required as a dis
claimer of Communist Party membership. The Court rejected
36. Christal v. Police Commission, 33 Cal. App. 2nd
564 (1939).
37. Perez v. Board of Police Commissioners, 78
Cal. App. 2ncT 638 ( 1947) . ------------------
38. Garner v. Board of Public Works, 341 U.S. 716
(1951). For an analysis of some of the State decisions,
see Peter Marx, "Civil Servants and the First Amendment,"
Intramural Law Review, XXII (1966-67), New York University
School of Law, pp. 55-78.
39. 341 U.S. 716 (1951).
137
Garner's claim that the requirement of oath and affidavit
constituted a deprivation of his freedom of speech and
expression, and upheld the requirements as legitimate tests
to help determine the fitness of an employee.
Through the opinion of Mr. Justice Clark, the Court
suggested that
a municipal employer is not disabled because it
is an agency of the State from inquiring of its
employees as to matters that may prove relevant
to their fitness and suitability for the public
service. Past conduct may well relate to present
fitness; past loyalty may have a reasonable re
lationship to present and future trust.
The Court also rejected Garner's claim that the Charter
provision involved constituted an ex post facto law, for
it did not seek to "punish" past conduct which was lawful
at the time. The majority opinion also rejected the claim
of violation of due process by assuming scienter to be
implicit in taking the oath, and also by assuming that
membership without knowledge of the aims of the organiza
tions involved would not constitute a violation of the
requirements.
In a dissenting opinion, Mr. Justice Douglas sug
gested that the oath did constitute a bill of attainder,
since dismissal for refusal to take such an oath consti
tuted a presumption of guilt without the protections of
due process, and thus amounted to "punishment."
40. Ibid., at 720.
138
The reasoning and basic conclusions of Garner were
41
applied in Adler v. Board of Education, in which the
Court upheld a provision of the New York Civil Service Law
disqualifying from the civil service and the public school
system any person who "advocates, advises, or teaches" the
overthrow of the government by force or violence, or who
organizes or joins any such group. The civil service
provisions were implemented by the Feinberg Law^ Qf 1949,
which required the State Board of Regents to list "sub
versive" organizations, membership in which constituted
prima facie evidence of disqualification. The Court ruled
this network of loyalty requirements did not constitute a
violation of First Amendment rights, and upheld as legiti
mate the dismissal of an employee, who, after notice and
hearing, was found_to advocate the proscribed doctrine, or
who was unable to explain satisfactorily membership in a
group which had illegal aims.
Later the same year, the Court in Wieman v.
Updegraff^3 clarified and restricted somewhat the decisions
41. 342 U.S. 485 (1952).
42. The specific provisions of the Feinberg Law and
a more detailed analysis of Adler are contained in Chapter
IV, dealing with the rights of teachers dismissed from
public employment. See pp. 171-175 infra. The grounds on
which the Feinberg Law was invalidated by Keyishian v.
Board of Regents, 385 U.S. 589 (1967) are also discussed
at this point.
43. 344 U.S. 183 (1952).
139
in Garner and Adler. At issue was an Oklahoma loyalty oath
which required all State officers and employees to declare
that they were not affiliated with, and during the pre
ceding five years had not been a member of, any organiza
tion officially designated by the United States Attorney
General as a Communist, Communist-front, or subversive
organization.
Plaintiff refused to take the required oath and was
dismissed, with the dismissal being upheld by the Oklahoma
Supreme Court. In reversing the dismissal, and declaring
the Oklahoma law unconstitutional, the United States
Supreme Court noted that the State courts had construed the
statute so that the fact of membership or association alone
disqualified a person from being employed or required dis
missal. In a unanimous decision, the Court held that a
State may not bar individuals from employment solely on
the basis of organizational membership, regardless of
their knowledge concerning the organization. Membership,
the Court reasoned, might be innocent, or the organization
itself innocent at the time of affiliation. Conversely,
an organization formerly subversive may have freed itself
of such influences. Thus,
indiscriminate classification of innocent with
knowing activity must fall as an assertion of
arbitrary power. ... We need not pause to
consider whether an abstract right of public
employment exists. It is sufficient to say
140
that constitutional protection does extend to the
public servant whose exclusion pursuant to a
statute is patently arbitrary or discriminatory. ^
The effect of Wieman was weakened, however, by sub
sequent decisions,^ with the ultimate result that although
an employee may not be arbitrarily or unreasonably dis
missed pursuant to a statute, his
violation of the dictates of the statute may
amount to "insubordination" or "incompetency."
A dismissal for "insubordination" or incom
petency" is not unreasonable or arbitrary, and
thus does not violate due process,
or the First Amendment rights protected through the re-
quirements of due process.
Dismissals Involving Abridgment
of Due Process
The most significant decision involving dismissal of
a State employee which was alleged to violate the protec
tions of due process of law came in Lerner v. Casey,^ and
the principles established in this case have been applied
44. Ibid., at 192.
45. See Beilan v. Board of Education, 357 U.S. 399
(1958), considered at pp. 181-184 infra; an? Lerner v.
Casey, 357 U.S. 468 (1958), considered at pp. 140-143
infra.
46. "The Due Process Clause and Dismissal from
Government Employment," Houston Law Review, II, No. 1
(Spring, 1964), p. 124.
47. 357 U.S. 468 (1958).
141
to many others. Lerner, a New York City subway conductor,
had been dismissed for refusing to answer questions of his
superior as to whether he was a member of the Communist
Party. Refusal to answer was held to be a violation of the
New York Security Risk Laws.^® Lerner based his refusal to
answer on the Fifth Amendment provision that no person may
be compelled to testify against himself.
Both the dismissal and the constitutionality of the
Security Risk Laws were upheld by the New York courts on
the grounds that Lerner's refusal to answer was relevant
to his fitness for the job, since his refusal created a
"doubt as to his trustworthiness and reliability," the
statutory ground for his dismissal as a security risk.
Lerner appealed adverse judgments of the New York
courts to the Supreme Court, which affirmed the dismissal,
although seeking different grounds to justify it. In its
opinion, the Supreme Court "was careful to hold that the
dismissal did not depend at all on the appellant's use of
the Fifth Amendment nor upon any inference of Communist
Party membership.Rather, it was held that the charac
terization of an employee as a "security risk" does not
necessarily imply disloyalty. The Court held that any
48. New York Laws, 1951, Ch. 233, as amended, New
York Laws, 1954, Ch. 105.
49. "Supreme Court, 1957 Term." Harvard Law Review,
LXXII, No. 1 (November, 1958), p. 188.
142
person holding a ‘ 'sensitive" position may be dismissed as
a security risk without being stigmatized as disloyal, even
though Lerner was deemed to be in a "sensitive" position
"solely on the ground that the State's classification of
the position as 'sensitive' was not so irrational as to be
constitutionally impermissible."^0
The Court through its opinion limited the applica
bility of the decision by noting expressly that Lerner
would not necessarily control the result in a similar situ
ation in which a Federal employee refused to answer ques
tions by invoking the Fifth Amendment. Such a case would
be distinguished from Lerner inasmuch as the Federal
privilege may not be invoked in State proceedings.
It is nevertheless suggested that Lerner may still
be applied so as to significantly reduce the effectiveness
of the protections of due process to employees dismissed
by the State. This is so since the threat of dismissal
for invoking the Fifth Amendment "may so undermine the
effective use of the privilege" that dismissal can then be
effected on the basis of information which would not have
been obtainable under a vigorous assertion of Fifth
Amendment protections.-^
A final factor which might arise from the
5°. Ibid., pp. 189-90.
51. Ibid., p. 192.
143
52
application of Lerner involves the "stigma" concept. In
53
a previous decision, Beilan v. Board of Education, Mr.
Justice Brennan in dissent had argued that dismissal of a
teacher for refusal to answer questions had "stigmatized"
the teacher since there was an implication of disloyalty
arising from the dismissal. The Harvard Law Review sug
gests that the claim of stigma is valid only if based on
unwarranted inference drawn by the public from the case;
no stigma may be attached by inferences drawn from the
superintendent's report, which was available to the public.
Lerner, however, poses a clearer question of stigma, since,
in order to dismiss him under the statute involved, the
State was compelled to label him a "security risk," a
"term which tends strongly to brand him as disloyal."54
While the right to invoke the Fifth Amendment pro
tection against self-incrimination thus seems not to be
effectively available to discharged State employees, the
right to confrontation by accusers is, according to the
dec is ion in Willner v. Committee on Character and Fitness.^ ^
52. For the application of this concept in a dif
ferent context, see Bailey v. Richardson, discussed at pp.
81-87, supra.
53. 357 U.S. 379 (1958).
54. "Supreme Court, 1957 Term," Harvard Law
Review, op. cit., p. 192.
55. 373 U.S. 96 (1963).
144
Willner had passed the New York State Bar Examination in
1936, and applied for admission to the New York Bar. How
ever, the Committee on Character and Fitness refused to
certify to the Appellate Division of the New York courts
that he possessed the character and fitness necessary for
admission to the bar, which under New York procedure auto
matically prevented his admission. Willner applied again
in 1943, 1948, 1951, 1954, and 1960. Each application was
denied without opinion by the Appellate Division.
In appealing the denials to the New York Court of
Appeals, Willner alleged that he had been shown a letter
from a New York attorney which contained adverse statements
about him. He further alleged that the Committee on Char
acter and Fitness had not kept a promise made at the
initial proceedings to allow him to confront the attorney.
Finally, he alleged that he had once been involved in liti
gation with another attorney who had wanted to "destroy
him." The New York Court of Appeals rejected Willner’s
allegations, upheld the refusal to admit him to the bar,
and rejected his claim of denial of due process.
The Supreme Court reversed this judgment, asserting
that Willner had been deprived by the State of the pro
tection of due process by the State's failure to require
confrontation of witnesses.
145
Additional questions regarding due process occur in
cases involving specifically dismissal of teachers, but
which also need to be briefly considered here because of
the due process aspects of the decisions. One of these,
Wieman v. Updegraff, has already been considered in con
nection with the right of association.56
Another significant ruling involving due process is
found in Slochower v. Board of Education.^ A New York
statute required the discharge, without notice or hearing,
of any employee who invoked the privilege against self
incrimination to avoid answering authorized questions con
cerning his official conduct. Slochower, a professor at
Brooklyn College, had previously testified before a State
legislative committee, and the information given there was
in the hands of his superiors. When Slochower invoked the
Fifth Amendment before a Congressional committee seeking
essentially the same information, he was discharged pur
suant to the statutory provisions. In overturning the
dismissal, the Court ruled that Slochower had been denied
due process, for
to state that a person does not have a constitu
tional right to government employment is only to
say that he must comply with reasonable, lawful,
56. See pp. 131-133, above.
57. 350 U.S. 551 (1956). For a much fuller con
sideration in the context of Teacher Dismissal, see Chap
ter IV, pp. 175-181.
146
and nondiscriminatory terms laid down by the
proper authorities. . . . This is not to say
that Slochower has a constitutional right to be
an associate professor of German at Brooklyn
College. . . . We hold that the summary dis
missal of appellant violates due process of
law.58
Dismissal without notice or hearing, and denial of the
right of protection against self-incrimination did not
come within the purview of "reasonable, lawful, and non
discriminatory" terms.
Conclusions
Concerning the dismissal of State employees other
than teachers, the follor'ng generalizations and con
clusions may be drawn:
1. No absolute right to government employment
exists.
2. By Supreme Court interpretation, the Hatch Act
has imposed virtually complete prohibitions on
partisan political activities by State employees
whose jobs are financed in any way to any degree
by Federal funds. The justification for such
restriction is that the Federal government is
establishing conditions on the use of funds
granted by it to the States, rather than regu
lating the activities of State employees as
such.
3. A State employee may, as a condition of em
ployment, be required to take a loyalty oath
and sign an affidavit disclaiming membership
in the Communist Party. This restriction of
the privilege against self-incrimination has
been upheld as a legitimate restriction inas
much as the requirements are reasonable tests
58. Ibid., at 555.
147
to help determine the fitness of an employee.
4. Dismissal because of refusal to answer a
superior's questions regarding Communist
Party affiliation may be upheld on the basis
that such refusal casts doubt on the reli
ability and trustworthiness of the employee.
Further, invocation of the Fifth Amendment
protection against self-incrimination is not
applicable in State proceedings.
5. The Court will accept a State designation of
a position as "sensitive" if such designation
is not so irrational as to be constitutionally
impermissible.
6. While the protection against self-incrimination
is not available to discharged State employees,
the right to confrontation by witnesses is.
7. The Courts have not accepted the assertion that
dismissal stigmatizes the individual.
CHAPTER IV
LEGAL ISSUES IN TEACHER DISMISSALS
While the basic constitutional questions involving
First Amendment rights and the protections of due process
indicated above also apply, some additional considerations
must be noted in teacher dismissals. One revolves around
the question of a right to public employment as a teacher
and the related issue of the "special relation" of teacher
to student and community as a factor in dismissals; two
others, which might be regarded as unique to teachers as
public employees, are the issues of tenure and academic
freedom.
Right to Employment
The extent of protection afforded teachers facing
dismissal will be determined to some degree by the answer
given to the question of whether or not there exists a
right to public employment as a teacher. Although opinion
has been expressed to the contrary, the generally accepted
view is that no such right exists. "There can be no
inchoate right to employment in the public schools as a
teacher. If this were not so, anyone and everyone could
demand such a position since all enjoy the same rights
148
149
under the Constitution.^
This view was clearly stated in Coleman v. School
District of Rochester,^ which held that a dismissal chal
lenged on grounds that it constituted a denial of a right
to public employment involves
no constitutional issue of personal rights. .
No one has a guaranteed or vested right to become
or to continue in a position as a public school
teacher. . . . The Legislature, if it saw fit,
might enact that teachers should be elected by
popular vote. . . . The scope of the legislative
authority in the premise is virtually untrammeled
and unhampered.
To say, however, that there is no absolute right to
public employment as a teacher means "only that a teacher
may not demand employment from the government." Since the
government must hire someone to teach, "everyone has a
right to be eligible to-work for the government. A person
does not necessarily have to be employed, but he cannot be
arbitrarily classified as ineligible.it has also been
established that government may not be discriminatory in
its hiring practices and procedures,^ and further, that
1. "Constitutionality of Efforts to Dismiss Public
School Teachers for Loyalty Reasons," Marquette Law Review,
XLII, No. 2 (Fall, 1958), p. 215.
2. 87 N.H. 465, 183 Atl. 856 (1936).
3. "Constitutionality of Efforts to Dismiss,"
Marquette Law Review, op. cit., p. 216.
4. Garner v. Board of Public Works, 341 U.S. 716
(1951).
150
once a person is employed, certain rights must be pro
tected. "... to state that a person does not have a
right to employment is only to say that he must comply with
reasonable, lawful and non-discriminatory terms laid down
by the proper authorities."^
A person then has no absolute right to a teaching
position at any level of public education in the sense that
he may demand the position. However, he does have a right
to be eligible for the job, to be considered for it by the
hiring authority. And while broad discretion may legiti
mately be exercised by the hiring authority, that discre
tion had limits. It may be exercised "only within the area
of reasonable qualifications for the position in question.
Obviously a rule or statute clearly showing discrimination
in hiring practices could not withstand judicial attack.
It would seem to foil that this rule of equal
treatment in hiring would have as its logical corollary a
rule of equal treatment in discharge. However, it is
suggested that the discretion of the hiring authority in
regard to teachers
is so broad and there is such a strong presump
tion of official regularity that the courts,
unless required by tenure legislation, will
5. Slochower v. Board of Education, 350 U.S. 551
(1956) at 555.
6. "Constitutionality of Efforts to Dismiss,"
Marquette Law Review, op. cit., p. 218.
151
not inquire into the justification for a dis
charge for which the government does not give a
reason.7
One reason for this judicial attitude may be traced
to the assertion that the relationship between teacher and
student and teacher and community is a special one, and not
present in other government-employer-employee relation
ships .
The courts- have stated their position so clearly
that there can be little doubt about the fact
that the judiciary views the role of the teacher
as one which covers a wider sphere than the
classroom. The courts have forcefully demon
strated that one who enters the education pro
fession assumes a responsibility which cannot
be taken off like one s coat at the end of the
teaching day.8
Court recognition that more than academic training
is required for competent teaching, and that a teacher is
expected to instill ideals through personal example, may
be demonstrated by excerpts from a number of opinions at
all judicial levels. For example,
The competency of a teacher does not depend
alone upon academic equipment. With technical
qualifications for the position must go char
acter, moral fiber, and respect for the glori
ous traditions of the teaching profession.
Without those attributes a teacher is but a
speaking blackboard or a walking textbook.
7. Ibid., pp. 218-19.
8. Herman E. Behling, Jr., "The Legal Gravity of
Specific Acts in Cases of Teacher Dismissal," North Dakota
Law Review, XLII, No. 4 (Summer, 1967), pp. 7b'l-bl.
152
A teacher must not only teach he must inspire
. . . [those] who look to him, in addition to
classroom instruction, for moral and inspira
tional guidance.9
Further, "a person who by example would teach his students
lessons they should not learn is not fit to be a teacher
regardless of his academic qualifications."10
Tenure and Academic Freedom and the
"Special Status" of Teachers
Increasingly, the courts have been required to rule
on teacher dismissals involving the issue of a special
teacher-student relationship, as well as the question of
whether the terms of employment laid down are "reasonable,
lawful, and non-discriminatory." In so doing, the courts
must to a degree determine which of three views regarding
the status of teachers vis-a-vis the hiring agency shall
be controlling. One view urges that a teacher is in the
same position as any employee, and any rights he might
assert would be the same as those in any government-
employee-employer relationship. A second view holds that
a teacher enjoys a special status, and that because of
this status, the State must be specifically restricted in
attempting to dismiss him. The third suggests that such
9. Kaplan v. School District of Philadelphia, 388
Pa. 213, 130 A. 2nd 762 (1957).
10. Los Angeles City Board of Education v. Swan, 41
Cal. App. 2nd 546, FT 2nd Yfel' (T ? 57 )~------------------------------
153
special status exists, but that any claim to special
status must be restricted to higher education.
That the latter two have been accorded some legiti
macy in law and custom is demonstrated by the existence of
tenure laws and practices, originally adopted to provide
public school teachers with immunity from political pres
sures, and more recently invoked to protect teachers in
their exercise of academic freedom.^ This being the case,
it is in order to trace briefly the development and prin
ciples relating to tenure and academic freedom.
The essence of tenure, whether customary or statu
tory, is that after a probationary period the instructor
is granted a permanent position from which he cannot be
removed except for "good cause" after a hearing. Statu
tory provisions, which date from 1886 in M a s s a c h u s e t t s , ^
have been recognized and consistently upheld by the courts.
Moreover, tenure rights have been acknowledged as valuable
rights, with the result that the States must observe the
requirements of due process and follow "reasonable pro
cedures" when seeking a dismissal. Clearly, a major
11. For a discussion of the development of tenure
laws as related to academic freedom, see Mary Ann Cohen,
"Academic Tenure: The Search for Standards," Southern
California Law Review, XXXIX, No. 4 (1966), pp. 593-608.
12. David Fellman, "Academic Freedom in American
Law," Wisconsin Law Review, Vol. 1961, No. 1 (January,
1961), p. 25.
154
problem is determining what is reasonable, and so far as
the courts are concerned, "the key to the whole matter lies
. . . in the definition of criteria and in the procedures
which relate to the terminations of appointments."13 Cri
teria widely recognized as authoritative have been drawn up
by the American Association of University Professors, the
key features of which may be summarized as follows
1. After the expiration of a probationary period,
teachers should have permanent tenure, and
should be removed only for adequate cause.
2. The precise terms and conditions of every
appointment should be stated in writing.
3. The probationary period should not exceed seven
years, and notice should be given at least one
year prior to the expiration of the probationary
period if the teacher is not to be continued in
service.
4. Termination for cause of either permanent or
probationary teachers should, if possible, be
considered by both a faculty committee and the
governing board of the institution. "In all
cases where the facts are in dispute, the ac
cused teacher should be informed before the
hearing in writing of the charges against him
and should have the opportunity to be heard in
his own defense by all bodies that pass judg
ment upon his case. He should be permitted to
have . . . counsel."13
13. Ibid.
14. See Louis Joughlin, ed., Academic Freedom and
Tenure. A Handbook of the American Association of Univer
sity Professors (^Madison; The University of Wisconsin
Press, 1967), Chapter 3.
15. Ibid., p. 38. This requirement of certain
procedures within the institution is frequently referred
to as "Academic Due Process."
155
It has been charged by those opposing them that
tenure laws violate the principle of equal protection of
the laws inasmuch as they single out for special considera
tion one specific group. Against this claim, the courts
have held that tenure is "based on the public policy of
protecting the educational interests of the State and not
on a policy of granting special privileges to teachers as
a class or as individuals."^ The basic intent of tenure
laws is thus seen by the courts as being a means to the end
of securing for the people of the State a competent and
efficient school system by protecting against unjust dis
missals .
Tenure is also viewed as a means to achieve the end
of academic freedom. This concept has as yet been given
no specific judicial definition, and "so far as academic
freedom and tenure in colleges and universities are con
cerned, American decisional law may be described as form
less and almost rudimentary."17 Academic freedom is none
theless widely claimed as a right by the academic communi
ty, and has been given at least vague recognition by the
courts, if not specific definition.
What are some of the basic claims advanced under
16. Fellman, op. cit., p. 27.
17. Richard P. Tisdel, "Academic Freedom— Its Con
stitutional Context," University of Colorado Law Review,
XL, (Summer, 1968), p. 605.
156
academic freedom, and upon what grounds may they be
justified? In tracing the origins and development of
academic freedom, Tisdel suggests two primary sources, both
derived from nineteenth-century Germany.^-® The first is
Lernfreiheit, the concept that students had not only
freedom over their personal activities, but also great
freedom over their academic careers as well. The second
is Lehrfreiheit, which permitted the educator to do inde
pendent research and to freely present his findings to his
students. These concepts, applied and accepted in Germany
strictly within the confines of the academic community,
were altered considerably in the American context, where
most of the rights which Lehrfreiheit was com
monly thought to encompass were theoretically
extended to everyone through the guaranteed
liberties of the Constitution. As a result of
this Constitutional "incorporation," the propo
sition that academic freedom should be considered
a right with independent character as it was in
Germany has not been generally accepted as a
sound legal principle in the United States.19
Tisdel further suggests that "academic freedom as an
independent right would be an anomaly in the American con
stitutional structure. There are two reasons for this
view. First, academic freedom as an independent right is
held to be constitutionally impractical and unnecessary.
18. Ibid., pp. 600-603.
19. Ibid., p. 603.
20. Ibid.
157
Second, the independent right theory is socially and
politically unacceptable and undesirable within the
American political and social context.
21
Exception to Tisdel's view is taken by Murphy, the
22 no 0 f t
AAUP, Cohen, 3 and Fellman, ^ among others. Murphy, in
deploring the lack of development of legal-juridical recog
nition of academic freedom, notes three reasons for this
lack. First, the academic world has not sufficiently edu
cated the rest of the populace as to the purpose, need, and
importance of academic freedom. Second is a reason "common
to most of the great human freedoms. This is that they are
almost invariably invoked by or in behalf of some persona
or causa non-grata."25 Finally, the academic community has
failed to vigorously and collectively pursue the claims of
academic freedom before the courts.
What are the claims which might be advanced? In
general terms, it is asserted that
the maintenance of freedom of speech, publication,
religion, and assembly ... is the breath of life
of a democratic society. ... To an increasing
extent, society has come to rely upon colleges and
21. William P. Murphy, "Academic F'reedom--An Emerg
ing Constitutional Right," Law and Contemporary Problems,
XXVIII, No. 3 (Summer, 1963), pp. 447-86.
22. Joughlin, ed., op. cit.
23. Cohen, op. cit., passim.
24. Fellman, op. cit., passim.
25. Murphy, op. cit., p. 448.
158
universities as a principal means of acquiring new
knowledge and techniques, of conveying the fruits
of past and present learning to the community, and
of transmitting these results to generations to
come. Without freedom to explore, to criticize
existing institutions, to exchange ideas, and to
advocate solutions to human problems, faculty
members and students can not perform their work,
can not maintain their self-respect
Fellman more directly urges that "... the university
must operate without intellectual boundaries because it
must be completely free to search for the truth."^
The assertion that academic freedom benefits only a
specific group is disputed by the AAUP.
The demand we of the academic world make for
academic freedom is not made primarily for our
own benefit. We enjoy the exercise of freedom;
but the purposes of liberty lie, in a democracy,
in the common welfare. ... We ask, then, for
the maintenance of academic freedom and of the
civil liberties of scholars, not as a special
right, but as a means whereby we may make our
appointed contribution to the life of the com
monwealth and share equitably, but not more than
equitably, in the American heritage.2°
Fellman gives the same basic assertion a slightly different
emphasis, suggesting that to assert that academic freedom
is solely for the benefit of teachers is to confuse the
issue. Academic freedom is not solely for the benefit of
scholars as a class, "since academic freedom exists in
order that society may have the benefit of honest judgment
26. Joughlin, op. cit., pp. 47-48.
27. Fellman, op. cit., p. 5.
28. Joughlin, op. cit., pp. 48-49.
159
and independent criticism which might otherwise be withheld
because of fear of offending a dominant social group or
transient social attitude.
The Teacher As a Public Employee.
Grounds for Dismissal
It is now possible to examine against this back
ground some of the specific cases involving teacher dis
missals, to identify guidelines established by the courts,
and to determine the degree to which tenure and academic
freedom have been recognized in these guidelines.
Dismissals Involving the
Morality of the Teacher
Several dismissals have involved allegations of im
moral conduct, ranging from conviction on charges of moral
turpitude to "an unmarried female teacher's allowing cir
cumstantial evidence to link her name to that of a married
man."^ The basic generalization that may be drawn from
the cases in this category is that "the community interest"
seems to justify a presumption of unfitness on the part of
the teacher facing charges of immoral conduct. Virtually
all dismissals on these grounds have so far been upheld,
29. Fellman, op. cit., p. 6.
30. Cohen, op. cit., p. 597.
160
providing reasonable procedures in the dismissal were fol
lowed. Tenure has not been held to be a bar to dismissal,
inasmuch as immoral conduct is considered to be "good
cause." Nor has academic freedom been successfully invoked
as a protection against dismissal under these charges.
Dismissals for Public Criticism
of Superiors
Is the State depriving a teacher of liberty without
due process of law when it dismisses him for publicly
criticizing his superiors, or for criticizing publicly the
conditions under which he must work? Such dismissals have
previously been upheld, for public criticism of a super-
31
visor in Watts v. Seward School Board, and for criticism
of working conditions in Board of Trustees v. Owens.^
In upholding these dismissals, the courts applied
what has been labeled the "disruption and impairment test."
This principle recognizes that those within an organization
might well be in the best position to observe inefficiency
and poor administration and their results. Nevertheless,
the inter-organization conflict prompted by public criti
cism may disrupt efficiency and undermine public confidence
to the extent that it is preferable to prevent such criti
cism. The application of the disruption and impairment
31. 381 U.S. 126 (1965).
32. 206 Cal. App. 2nd 147 (1962).
•w
161
test becomes, therefore, a matter of balancing the relative
merits of public exposure of inefficiency against main
tenance of public confidence and organization morale. Fur
thermore, it involves the assumption that a relationship
exists between the act of public criticism of the organiza
tion by the teacher and the teacher's fitness.
This test has been criticized as too vague and in
exact, and as assuming that critical statements by a
teacher reflect or determine his fitness. Further, it is
asserted that it is too easy for a hostile observer to find
some "disruption" or "impairment" in any situation where
he would want to find it.
These uncertainties have been largely resolved by
the recent decision in Pickering v. Board of Education.34-
Here the Court reversed an Illinois decision35 upholding
the dismissal of a teacher for criticizing school board
handling of revenue raising procedures. The legal ques
tions and opinion are of enough significance to require
extensive analysis.
Appellant, a high school teacher in Illinois, had
been dismissed for writing a letter published in a local
newspaper criticizing Board of Education handling of
33. Fellman, op. cit., p. 7.
34. 391 U.S. 563 (1968).
35. Pickering v. Board of Education, 36 111. 2nd
568 (1967).
162
efforts to raise revenue through bond issues and tax in
crease proposals. Pickering's letter had charged that
during the past campaigns to increase the educa
tion tax the Board and Superintendent of Schools
had misled the voters concerning the use to be
made of the additional tax revenues. The letter
suggested that the Superintends!t had prevented
teachers from voicing their opposition to the
proposed tax increase and was in general criti
cal of the manner in which school funds had been
allocated between athletic and academic pro
grams .36
After dismissal, and pursuant to Illinois law,^ the
Board held a hearing at which it was unanimously decided
that numerous statements in the letter were false, that
publication of the statements unjustifiably impugned the
Board and school administration, and that publication was
detrimental to the efficient operation and administration
of the schools. This determination was appealed to the
Circuit Court of Will County which affirmed the dismissal,
and then to the Supreme Court of Illinois, which affirmed
the Circuit Court decision. The United States Supreme
Court reversed, holding that, absent proof of false state
ments, knowingly or recklessly made, exercise of the right
to speak on issues of public importance may not be the
36. "Recent Decisions. Constitutional Law: Bal
ancing Test Applied to Teacher's Criticism of School
Board," Brooklyn Law Review, XXV, No. 2 (Winter, 1969),
p. 270. The full text of Pickering's letter is contained
in 391 U.S. 563 (1967), Appendix A.
37. 111. Rev. St., Chap. 122, Sec. 10-22.4 (1963).
163
basis for dismissal.
When considered in light of the arguments and
precedents relied on by the Court, Pickering appears to
significantly increase the protections available under the
First Amendment to teachers and other public employees
facing dismissal. In disallowing the dismissal, the Court
specifically rejected the former guidelines controlling in
such cases. These were essentially based on the doctrine
of balancing the interests of the individual and society
when the State sought to require surrender of a constitu
tional right as a condition of the privilege of public
employment. Constitutional grants have "traditionally
been supported by the argument that the power to withhold
the grant of a privilege absolutely implies existence of
the power to condition the circumstances under which the
privilege will be granted."^®
The rationales by which the Court rejected this
balancing doctrine now need to be examined. One of the
major principles on which the Court relied is derived from
39
New York Times Co. v. Sullivan. Here the Court, through
the opinion of Mr. Justice Brennan, declared that provi
sions of the First and Fourteenth Amendments prohibit a
38. "Case Comments. Free Speech: Dismissal of
Teacher for Public Statements," Minnesota Law Review, LIII
(March, 1969), p. 865.
39. 376 U.S. 254 (1964).
164
public official from recovering damages for a defamatory
falsehood concerning his official conduct in the absence
of proof that the statements were made with "actual
malice," that is with both knowledge of their falsity and
also with "reckless disregard" for whether they were true
or not.^0 This precedent is doubly important, for "besides
augmenting the guarantee of protected speech, the New York
Times rule signalled a shift in the burden of proof on
malice from defendant to plaintiff."^-*- This rule was ex
tended, in Garrison v. Louisiana,^ to include criminal as
well as civil libel.
Both cases suggest that the key to what now consti
tutes libel is not "care" or "prudence" in the ordinary
sense; rather, "defeasance of the privilege [of expression]
is conditioned not on mere negligence, but on reckless
disregard for the truth.The majority opinion in the
Times decision held that honest remarks, even if inaccurate^
would further the fruitful exercise of the rights of free
speech. However, lies, knowingly and deliberately pub
lished about a public official, are not protected by the
40. Ibid., at 279-80.
41. Gregory H. Wheeler, "Dismissal of Teacher for
Publishing Views on Issues of Importance Must Be Tested
by New York Times Rule," Syracuse Law Review, XX, No. 1
(Fall, 1968), p. 72.
42. 379 U.S. 64 (1964).
43. Ibid., at 79.
165
F irs t Amendment.
Before Pickering reached the Court, a further re
finement of the Times rule was developed in St. Amat v.
Thompson,^ which held that the defendant in a libel suit
, ( would have to be shown to have entertained serious doubts
as to the truth of his publication."^ Publishing with
such doubts would indicate reckless disregard for truth or
falsity, and thus be a factor in demonstrating actual
malice.
In Pickering, "the New York Times rule has been
applied de novo in an academic situation, resulting in
significant extension of First Amendment protections. The
Court specifically looked into the facts of the case, and
suggested that statements made by Pickering could be
divided into those which were substantially true, and those
which the Court agreed were false. Under no circumstances
could Pickering be dismissed for those which were true.
Regarding those statements of questionable truth, the Court
noted that they were directed at Pickering's ultimate
superiors, and that there was thus no problem of impairment
of faculty discipline or morale. Moreover, as Mr. Justice
Marshall urged in an opinion written for a unanimous Court,
44. 390 U.S. 727 (1968).
45. Ibid., at 731.
46. Wheeler, op. cit., p. 73.
166
even though appellant did not make substantial
efforts to verify the accuracy of his charges,
nevertheless, the erroneous statements concerned
matters of public record about which Pickering's
position as a teacher gave him more expertise
than any other taxpayer.47
In this specific situation the Court held that the
Board's interest in limiting teacher participation in pub
lic debate was "not significantly greater" than its in
terest in limiting similar participation by the general
public. Further, Marshall noted that threats of dismissal,
like criminal sanctions and damage awards, are potent in
struments in inhibiting freedom of speech. "Although re
luctant to equate dismissal from public employment for
remarks critical of a superior to awarding damages in a
libel suit by a public official for similar criticism,"
the Court found that the employment relationship in this
specific case was "only 'tangentially and insubstantially
involved1 with the subject matter of Pickering's state
ments; therefore, he was considered simply a member of the
general public.
Additional principles incorporated into the
Pickering decision included the holding that surrender of
constitutional rights as a precondition to public employ
ment could not be achieved through reliance on a vaguely
47. 391 U.S. 563 (1968) at 572.
48. Wheeler, op. cit., pp. 73-74.
167
49
drawn statute, one of the grounds upon which the Illinois
statute was attacked. To meet the vagueness guidelines
established by Pickering, such statutes must be clear and
specific in their provisions, and must bear a direct re
lationship to a vital State interest. The Court has recog
nized that fitness of public school teachers is such an
interest,^® and has recognized further that it is the duty
of a teacher to conduct himself both in and out of the
classroom in a manner that maintains the integrity of the
schools.'*'*' Accordingly, administrative inquiries into the
fitness of a teacher may be extended beyond the classroom
to include activities not directly related to teaching.
However, in such circumstances the Court now demands
specificity in the statutory regulations to guard against
the possibility of a conscientious teacher forfeiting
rights not legitimately subject to regulation in an effort
to observe vaguely drawn statutory requirements.
What the ultimate impact of Pickering will be is
subject to differing opinion, although most commentaries
agree it does significantly strengthen safeguards against
49. Keyishian v. Board of Regents, 385 U.S. 589
(1967). For an extensive analysis see pp. 195-200 infra.
50. Adler v. Board of Education, 342 U.S. 485
(1952). For an extensive analysis, see pp. 171-175 infra.
51. Beilan v. Board of Education, 357 U.S. 399
(1957). For analysis, see pp. 181-186 infra.
168
dismissal for exercising rights protected by the First
Amendment. It clearly holds that, absent proof of actual
malice, mere assertion of the "best interests" of the
school system cannot be the sole determinant in teacher
dismissal proceedings. Rather, the Court posed the problem
as one requiring a balancing of the teacher's right "as a
private citizen to speak freely on public issues against
the State's interest in promoting the efficiency of the
public school system by controlling the conduct of its
employees."52 The balance is tipped clearly in favor of
the individual and the First Amendment.
Yet, "while protecting the teacher's right to com
ment on public issues, the Court clearly denies any intent
to establish a broad immunity applicable to all critical
utterances by teachers.The Court cited specific in
stances where the balance might be tipped in favor of
State interests, and indicated that the guidelines estab
lished in Pickering might not be applicable in the follow
ing situations: where there exists a need for confidenti
ality in connection with public employment;^ when a close
occupational relationship exists between the teacher and
52. "Case Comments. Free Speech," Minnesota Law
Review, op. cit., p. 869.
53. Ibid., p. 871, citing 391 U.S. 563 (1968) at
569.
54. 391 U.S. 563 (1968) at 570, n.3.
169
the person c r i t i c i z e d;55 when established procedures for
raising grievances are available which have not been uti
lized or when the statements are so false that they
place in doubt the teacher's fitness for his posit ion.
In addition, "it may be inferred that the Court might with
hold the immunity if the statement were particularly diffi
cult to rebut,"58 or if it resulted in a direct interfer
ence with classroom activities or the day-to-day operation
of the school system.
In final analysis, it is suggested by Wheeler that
the Court has clearly held that a teacher, in exercising
his freedom of speech on important public issues, can not
be dismissed if there is not clear proof of actual malice
as defined in the New York Times rule. Further, Wheeler
suggests, future application of Pickering "may mean that
the Supreme Court . . . will require those plaintiffs
proving 'actual malice' to take the additional step of
introducing substantial proof as to harm suffered.
The Minnesota Law Review agrees that Pickering did
indeed go beyond simple considerations of procedural due
process to examine specific grounds for dismissal by local
55. Ibid., at 567-70, n. 3.
56. Ibid., at 572, n. 4. 57. Ibid., at 573, n. 5.
58. "Case Comments. Free Speech," Minnesota Law
Review, op. cit., pp. 871-72.
59. Wheeler, op. cit., p. 74.
170
school boards. However,
the decision does not lend itself to the broad
application that is suggested at first blush.
The Court does not establish clear substantive
guidelines for judging school board action in
future dismissal cases. The decision may, in
fact, be limited to what appeared to the Court
to be an obvious abuse of the discretionary
power of the school board.60
In asserting this view, the Review notes that the Court
emphasized the public nature of this specific case, but
did not consider the "disruptive harm" test developed in
61
Board of Trustees v. Owens. Thus, although some state
ments by teachers on some matters of public concern "appear
to be protected in certain circumstances, it is not clear
what effect harm or disruption would have on the outcome
of future cases."^2
In order to clarify and make meaningful the pro
tections potential in the decision,
the court should make clear at its first oppor
tunity that harm resulting from statements of
teachers on public issues can not be determina
tive in teacner dismissal proceedings. Rather,
the Court should adopt the standard that any
negligently false statement made with reference
to such issues by a teacher is made by him as a
60. "Case Comments. Free Speech," Minnesota Law
Review, op. cit., pp. 871-72.
61. 206 Cal. App. 2nd 147 (1962).
62. "Case Comments. Free Speech," Minnesota Law
Review, op. cit., p. 872.
171
private citizen and in the absence of a showing of
a "compelling State interest" is to be afforded
equivalent First Amendment protection.63
Whether or not any current guidelines exist as the
basis for such an extension will be explored in the final
Chapter.
Disloyalty as Grounds for Removal
It will be recalled from Chapter II that the Federal
Loyalty and Security Programs of the 1940's and 1950's were
the bases for most dismissals from direct Federal employ
ment during that period. The same concern with ensuring
loyalty and security has likewise been the cause of many
teacher dismissals. However, the courts have shown a much
stronger inclination to disallow arbitrary dismissal and
denial of First Amendment rights in the case of teachers
than in the case of Federal employees. In examining the
legal issues involved, it is convenient to consider the
cases under three major categories, although it must again
be noted that some overlapping will exist. The categories
are: Dismissals because of Political Associations; Dis
missals for Asserting Fifth Amendment Rights; and Dis
missals for Refusal to Take a Loyalty Oath.
Dismissals Because of Political Associations. The
first major case to review a dismissal because of political
63. Ibid., p. 873.
172
affiliation was Adler v. Board of Education,^ which upheld
the complex of New York loyalty and security requirements
known as the Feinberg law. J A lengthy preamble to this
set of laws and oaths asserted that Communists were known
to have infiltrated the public school system of New York
with harmful and menacing results. The legislation itself
provided for disqualification and removal of all superin
tendents, teachers, and employees in the public schools
advocating the overthrow of the government by unlawful
means, or belonging to organizations that did. The Board
of Regents was directed to list, after full notice and
hearing, all organizations advocating unlawful aims. In
compiling such a list, the Board of Regents was authorized
to use similar lists drawn up by any Federal agency or
officer. Membership in any organization listed was made
prima facie evidence of disqualification from any position
in the public schools. Any person presumed to be disquali
fied was required to be granted a full hearing, with right
to counsel and right of judicial review. In his action,
Adler sought to have the statute declared unconstitutional
and its enforcement enjoined.
In rejecting the claim, the Court, through the
64. 342 U.S. 485 (1952).
65. A more complete description of the Feinberg
provisions will be given in connection with the analysis of
Keyishian v. Board of Regents, 385 U.S. 589 (1967), which
overturned the entire complex. See pp. 195-200 infra.
173
opinion of Mr. Justice Minton, denied any infringement of
First Amendment rights. It was acknowledged that teachers,
as do any individuals, enjoy the right to assemble, speak,
and think as they will. However,
it is equally clear that they have no right to
work for the State in the school system on their
own terms. . . . They may work for the school
system upon the reasonable terms laid down by the
proper authorities in New York. If they do not
choose to work on such terms, they are at liberty
to retain their beliefs and associations and go
elsewhere. Has the State thus deprived them of
any right to free speech or assembly? We think
not.66
Denial of Adler's plea was justified on two grounds:
first, his advocacy of overthrow of the government by force
or violence; second, his unexplained membership in an or
ganization found to advocate overthrow of the government
by unlawful means.
Adler's advocacy of violent overthrow was passed
over by the Court, with Minton simply noting that "the
constitutionality of the first proposition is not ques
tioned here.Regarding the second issue, the Court
adhered to the guideline established in Garner,68 that
past conduct may have a reasonable relationship to present
and future fitness and trust.
66. 342 U.S. 485 (1952) at 492.
67. Ibid.
68. Garner v. Board of Public Works, 341 U.S. 716
(1951). For analysis, see pp. 136-137, supra.
174
That the school authorities have the right and
duty to screen the officials, teachers, and em
ployees as to their fitness to maintain the
integrity of the schools as a part of ordered
society can not be doubted. One's associates,
past and present, as well as one's conduct, may
properly be considered in determining one's
fitness and loyalty. ^
Three dissenting opinions were written, with that of
Mr. Justice Douglas, joined by Mr. Justice Black, charging
the majority of requiring an individual accepting public
employment to sacrifice constitutional rights as a condi
tion of such employment.
The present law proceeds on a principle repug
nant to our society--guilt by association. . . .
The mere fact of membership in the organization
raises a prima facie case of her own guilt. She
may not, it is said, show her innocence. But
innocence, in this case, turns on knowledge; and
when the witch hunt is on, one who must rely on
ignorance leans on a feeble r e e d .70
Mr. Justice Frankfurter in a separate dissent suggested
that the Court should not even have considered the case,
since he claimed appellant lacked standing to sue.
That aspect of Adler which concerned the right of
association was modified by Shelton v. Tucker.^ Here the
Court voided an Arkansas statute which compelled every
teacher in a State-supported school to file annually an
affidavit listing every organization to which he had
69. 342 U.S. 485 (1952) at 493.
70. Ibid.. at 508-509.
71. 364 U.S. 479 (1960).
175
belonged or regularly contributed within the preceding five
years. The 5-4 majority relied on statutory interpreta
tion, rather than ruling directly on the broad constitu
tional issue of right of association.
All members of the Court agreed that the State has
a right to investigate the competence and fitness
of those whom it hires to teach in its schools.
They further appeared to agree that some check
into associational ties would be relevant to the
matter of competence. But the majority felt that
to inquire into every such organizational rela
tionship- -churchTalTFiliation, political party,
social clubs, and others--was to permit unlimited
scope to such an inquiry and therefore violate
the freedom of association.72
Dismissals for Invoking the Fifth Amendment Protec
tion Against Self-Incrimination. Closely related to the
above cases are those in which a teacher was dismissed for
asserting the guarantees of the Fifth Amendment. Circum
stances and opinions of two of these warrant close atten
tion, Slochower v. Board of E d u c a t i o n , 73 an(j Beilan v.
Board of Education.^
Slochower arose out of a challenge to a New York
City Charter provision requiring that any city employee
pleading self-incrimination to avoid answering questions
relating to his official conduct be automatically removed,
72. M. Glenn Abernathy, Civil Liberties Under the
Constitution (New York: Dodd, Mead, 1968), p. 595.
73. 350 U.S. 551 (1956).
74. 357 U.S. 379 (1958).
176
and be ineligible for reappointment. Slochower was an
associate professor of German at Brooklyn College, main
tained by the City of New York. In 1953 he had refused to
testify before the Internal Security Subcommittee of the
Judiciary Committee of the United States Senate concerning
alleged Communist activities. Slochower invoked the Fifth
Amendment to justify his refusal. The Board of Education
dismissed him pursuant to the City Charter provisions,
alleging that one of two possible inferences must follow
from his assertion of the Fifth Amendment: first, that
answering the questions would prove him guilty of a crime
in some way connected with his official conduct; second,
that in order to avoid answering the questions he falsely
invoked the privilege by stating that the answers would
tend to incriminate him, thus committing perjury. Either
inference, the Board argued, was sufficient to warrant
dismissal.
Before considering the opinion reversing Slochower's
dismissal, it will be helpful to note some of the standards
relative to the legitimate functions of investigating com
mittees and the grounds for invoking the Fifth Amendment.
Under the concept of separation of powers "it is
elementary that . . . the basic purpose of the legislative
body is law making. Technically, any other power of
Congress, including the power to investigate, is possessed
177
as an aid to this basic function."75 Investigations are
not trials, and investigating committees are not courts or
grand juries. Witnesses called to answer questions re
garding their personal behavior and activity "are not
called for personal retribution, but because whatever of
a personal nature is involved has a direct or indirect
bearing upon a problem possibly requiring additional
legislation."76 This view has been accorded explicit
judicial recognition through an opinion of the Federal
District Court for the District of Columbia. "So far as
I am aware, no court has ever held that a Congressional
Committee may compel the attendance of witnesses without
having a legislative purpose."77
The theory is one thing; the practice, however, has
often been another. Congress has conducted numerous spe->
cial investigations, many of them "as a political weapon to
expose corruption of the executive b r a n c h . "78 Files, par
ticularly regarding alleged Communist Party membership and
subversive activity, were compiled by investigating commit
tees, not for legislative purposes, but rather to supply
75. Marion K. Finkelhor and Craig T. Stockdale,
"The Professor and the Fifth Amendment," University of
Pittsburgh Law Review, XVI, No. 4 (Summer" 1955), p. 547.
76. Ibid.
77. United States v. Kleinman, 107 F. Supp. 407
(D.C.D.C. 19337;;
78. Finkelhor and Stockdale, op. cit., p. 347.
178
information to universities for guidance in hiring.^ Fur
ther, while some judicial safeguards have been established
to protect the rights of those called before investigating
80
committees, "because the methodology of the committee has
grown up around the concept of information for legislation
with incidental personal involvement, only minimal pro
tection of the individual has evolved."SI In order to
negate even the minimal protection afforded by the consti
tutional right to invoke the Fifth Amendment, many States
passed laws which called for automatic dismissal from pub
lic employment if the privilege was invoked. Such a provi
sion was the one relied upon to dismiss Slochower.
Prior to Slochower, a number of principles regarding
use of the privilege against self-incrimination had de
veloped, some of which are directly related to an analysis
of the decision. First, it has been generally accepted
that the intent of the provision was to protect the inno-
82
cent rather than provide an escape for the guilty. Fur
ther, the right has been recognized as a constitutionally
79. Ibid., p. 348.
80. See, for example, Emspack v. United States, 349
U.S. 190 (1955), and Quinn v. United States, 349 U.S. 155
(1955), which upheld the right to invoke the Fifth Amend
ment before investigating committees.
81. Finkelhor and Stockdale, op. cit., p. 349.
82. For a discussion of cases and holdings forming
the basis for this assertion, see "Constitutionality of
Efforts to Dismiss Public School Teachers for Loyalty Pur
poses ," Mar£uet£e_^aw_Review, op. cit., pp. 215-36.
179
guaranteed right, rather than a privilege. However, there
is no constitutional guarantee that the right may be in
voked in private or without notoriety, and a person "must
recognize the fact that his use of the privilege will prob
ably cause the loss of his reputation."®®
To return now to an analysis of the Slochower
opinion, the Supreme Court, even though it reversed the
dismissal, did not rule out all attempts by the State to
inquire into possible disloyalty of its employees. Rather,
it rejected the statutory interpretation by the New York
Courts that "the assertion of the privilege against self
incrimination is equivalent to a resignation."®^ Appellant
had twenty-seven years' experience as a college teacher,
and had acquired tenure under State law. He had testified
about his Communist affiliations before a New York legisla
tive committee in 1940 and 1941, and in 1941 before a Board
of Faculty in connection with the charge that he was a
Communist. In 1952, as part of a national investigation
relative to subversive influence in the colleges, the
Internal Security Subcommittee of the Senate Judiciary
Committee called him to testify on the same grounds. He
there testified that he was not at that time a Communist,
83. Ibid., quoting Nelson v. Wyman, 99 N.H. 33
(1954).
84. 350 U.S. 551 (1956) at 554.
180
and offered to answer all questions regarding affiliations
since 1941, but declined to do so for the years 1940 and
1941 on grounds that to do so might tend to incriminate
him. Although he could be legally discharged only for
"cause," the New York courts held that "adequate cause"
existed, inasmuch as his refusal to answer amounted to
resignation.
The 5-4 Supreme Court majority based its decision
on the premise that no inference of guilt can be drawn
from invocation of the Fifth Amendment. If the Board had
not drawn such an inference, there would have been no
reason to believe Slochower unfit, inasmuch as the Board
had conducted no independent inquiry as to fitness, but
justified the dismissal solely on Slochower's use of the
Fifth. Thus, the Court's reason for not permitting an in
ference of disloyalty was not that the rights protected by
the Fifth Amendment would be infringed, but rather that the
conclusion of disloyalty did not necessarily follow from
mere refusal to testify. Moreover, as suggested by the
majority opinion of Mr. Justice Clark, the State provision
operates to discharge every city employee who in
vokes the Fifth Amendment. In practical effect,
the questions asked are taken as confessed and
made the basis of the discharge. . . . The heavy
hand of the statute falls alike on all who exer
cise their constitutional privilege, the full
enjoyment of which every person is entitled to
receive.85
85. Ibid., at 558.
181
Mr. Justice Reed, joined in dissent by Justices
Minton and Burton, argued that the right to refuse to
answer questions of legally authorized bodies may be in
voked only in the case of criminal prosecution. Avoidance
of a "public duty" to furnish the information sought "can
properly be considered to stamp the employee as unfit to
hold certain official positions. Such a conclusion is re
inforced when the claimant for protection has a role of
instructor to youth."86
In a separate dissent, Mr. Justice Harlan urged
that the Court had already established two precedents that
should be controlling: that a State may make knowing mem
bership in an organization which advocates forcible over
throw of the government grounds for disqualification from
public school employment, and that requiring public school
teachers to furnish information regarding Communist Party
affiliations is a relevant step in implementing such a
policy.
It is the reasoning incorporated in Harlan's dis
sent which is basically adhered to in the next significant
88
case, Beilan v. Board of Education. This case reached
86. Ibid., at 562.
87. Adler v. Board of Education. 342 U.S. 485
(1952). See pp. 172-75 supra for analysis.
88. 357 U.S. 399 (1958).
182
the Supreme Court from the Pennsylvania Supreme Court
which had upheld Beilan's dismissal. Appellant, a high
school English teacher, had refused to answer questions of
the Superintendent regarding past Communist affiliations,
specifically whether in 1944 he had been Press Director of
the Professional Section of the Communist Political Asso
ciation, an organization which was the predecessor of the
reorganized Communist Party of the United States. Beilan
was advised that failure to answer might lead to his dis
missal. He nonetheless refused to answer questions of the
Superintendent, and thirteen months later invoked the
Fifth Amendment before a subcommittee of the House Un-
American Activities Committee.
Dismissal proceedings were immediately instituted
by the Board, which found as a result of a formal hearing,
that Beilan's refusal to answer constituted statutory
incompetence, grounds for dismissal under Pennsylvania
law. He was immediately dismissed, although he had been
rated "satisfactory" in competence by his immediate
superior during the thirteen-month interval.
Emphasis at both hearing and early judicial stages
was on procedural questions rather than the constitutional
issue of the right to refuse to testify. At the hearing
conducted by the Board of Education, Beilan's loyalty was
89. Board of Public Instruction v. Beilan, 386 Pa.
82, 125 A. 2nd 327 (1956).
183
not directly at issue. Counsel for both parties agreed
the only issue was whether refusal to answer certain ques
tions might constitute grounds for dismissal under charges
of incompetence. The Board's allegations of incompetence
were based on two points: refusal to answer the Superin
tendent's questions, and invoking the Fifth Amendment.
The Pennsylvania Supreme Court upheld the dismissal
on the first count, and ignored the second, saying that
"if any one of them [the charges] was sustained, his dis
missal was justified."90 By reaching this conclusion the
court held that "dismissal of a public employee without a
loyalty hearing, pursuant to a finding of incompetency for
refusal to answer questions of an administrative superior
about past political affiliations, is not denial of due
process of law."^! Further, by upholding the dismissal on
grounds of incompetence, the court suggests that incom
petence is not limited to educational qualifications and
classroom performance, but may include "any activity or
conduct which manifests a lack of suitability or fitness
for employment."^
On appeal, Beilan argued that while loyalty was not
90. Ibid.
91. "Case Notes," The George Washington Law Review,
XXVII, No. 4 (April, 1959), p. 582.
92. Ibid., p. 583.
184
the overt issue, the hearing before the Board amounted to
a loyalty hearing in disguise, based on inferences drawn
from his invocation of the Fifth Amendment. He asserted
further that he had been denied due process, since he was
dismissed under a stigma of disloyalty, without any evi
dence of disloyalty, and without having the chance to
affirmatively prove his loyalty.
In upholding the Pennsylvania decision, the Supreme
93
Court cited Garner v. Board of Public Works, which had
established the principle that past Communist affiliations
are a valid subject of inquiry in attempting to determine
present fitness for employment. Beilan might be considered
an extension of Garner in its pronouncement of the doctrine
that "a public employee, by reason of his employment,
undertakes an obligation of frankness and candor toward
informing his employer of past questionable activities.
Beilan was thus dismissed not for disloyalty, but
rather for blocking an inquiry into activities relevant to
his employment. An employee "must, under pain of dis
charge, answer pertinent questions as to his qualifications
for continued employment."95 jn this regard, Beilan
93. 341 U.S. 716 (1951). See pp. 136-37 supra.
94. "Case Notes," The George Washington Law Review,
op. cit., p. 583.
95. "Constitutionality of Efforts to Dismiss,"
Marquette Law Review, op. cit., p. 230.
185
differs from Slochower, in which the State action of dis
missal was reversed because it was admittedly made on
inferences of disloyalty drawn from appellant's use of the
Fifth Amendment protection against self-incrimination.
Beilan tips the balance more in favor of the State interest
in acknowledging that State responsibility for assuring the
quality of education and competency of its teachers'
demands that the State have the authority requisite to
carry out this responsibility. This includes inquiring
into the background of the teacher for relevant informa
tion, and implies the full and frank cooperation of the
teacher.
By virtue of the Beilan decision, the discretion
allowed the hiring agency in an initial inquiry into loy
alty and political affiliations is significantly extended,
for the safeguards which apply when loyalty and political
affiliations are themselves at issue are absent. A teacher
who admits to past affiliations is protected by the holding
that past membership in the Communist Party is not ipso
facto grounds for dismissal, because scienter must be
96
proved in order to effect the dismissal. This pro
tection, however, comes after rather than before the dis
closure of affiliation, and disclosure of past affiliations
may open the way to future inquiries, where refusal to give
96. Wieman v. Updegraff, 344 U.S. 183 (1952) at
191.
186
information may then be a cause for dismissal.
In dissent, Mr. Chief Justice Warren, joined by
Justices Black and Douglas, urged that Beilan's dismissal
was directly related to his assertion of Fifth Amendment
rights. Specifically, Warren suggested that Beilan's
"satisfactory" rating during the thirteen-month period be
tween refusal to answer the Superintendent's questions and
his appearance before the Un-American Activities Committee
clearly indicated that his dismissal was so "inextricably"
connected with his assertion of the Fifth Amendment as to
negate its validity.97
Dismissal for Refusal To
Take a Loyalty Oath
While the holding in Beilan has not been specifical
ly overruled, protections on other grounds against dis
missals for refusal to take a loyalty oath have been sig
nificantly increased by recent decisions, notably Elfbrandt
v. Russell,and Keyishian v. Board of Regents.^ Before
dealing with these cases, some assumptions and legal
principles regarding loyalty oaths should be briefly
considered.
Loyalty requirements and oaths are very much a part
97. 357 U.S. 399 (1958) at 411.
98. 384 U.S. 11 (1966).
99. 385 U.S. 589 (1967).
187
of the American political experience, dating to the
colonial period.
From the Puritan societies which adopted plans
requiring acknowledgment of subjection to their
governments, to the formation of the colonies,
and finally into the structures of State govern
ments, mandates of loyalty were considered by
many to be both necessary and desirable.101
Concern with loyalty requirements, which one observer sug
gests may be traced to a "tendency on the part of Americans
to regard with fear and suspicion all things foreign,"102
reached a height in the period following the end of World
War 11.^03 This concern was reflected most noticeably in
the area of public employment, and resulted in passage of
laws in most States making loyalty a prerequisite for
public employment, and prescribing various tests to ascer
tain the loyalty of employees.
While such laws and dismissals under them were
100. See, among others, Walter Gellhorn, The States
and Subversion (Ithaca, New York: Cornell University Press,
1952), vii, 454 pp., and Zechariah Chafee, Free Speech in
the United States (Cambridge, Mass.: Harvard University
Press, 1942), xviii, 634 pp.
101. David R. Pfalzgraf, "An Appraisal of Security
Legislation in Education in the Light of Keyishian: A
Proposed Solution," Buffalo Law Review, XVI, No, 2 (Spring,
1967), p. 782.
102. Frank J. Dailey, "Loyalty Requirements versus
Academic Freedom," Marquette Law Review, LII, No. 2 (Fall,
1968), p. 251.
103. For an analysis of this concern as reflected
in national legislation and issues, see pp. 76-78 supra.
188
challenged, in almost all of the decisions prior to
Elfbrandt and Keyishian, the courts upheld the statutes;
or, where they declined to rule on the constitutionality
of the statutes, upheld the dismissals on procedural
grounds.In general, the view of the courts was that
. . . the principal aim of the statutes . . .
was not to penalize political beliefs, but to
deny positions to persons supposed to be danger
ous because the position might be misused to the
detriment of the p u b l i c .105
Recently there has been a reversal of this trend, and it is
in Elfbrandt that "perhaps the strongest expression of the
Court's increasingly anti-loyalty requirements attitude"!®^
is seen.
Two Arizona public school teachers, husband and
wife, claimed they could not in good conscience take the
required loyalty oath which stipulated that the signer
would support and defend the Constitution and would faith
fully carry out the duties of his office. The Arizona
legislature had put a gloss on the oath, subjecting to
criminal penalties and discharge any person taking the oath
who "knowingly and willingly becomes or remains a member of
104. Such decisions, considered earlier, include
Garner v. Board of Public Works, 341 U.S. 716 (1951);
Adler v. Board of Education, 342 U.S. 485 (1952); Lerner
v. Casey, 357 U.S. 468 (1958); and Beilan v. Board of
Education, 357 U.S. 399 (1958).
105. Dailey, op. cit., p. 255.
106. Ibid., p. 256.
189
the Communist Party of the United States" or of "any other
organization having for one of its purposes the overthrow
by force or violence of the government of the United States
or Arizona."107 Knowledge by the employee of the unlawful
purposes of the organization was required for dismissal.
Petitioners sought a hearing at which the precise
scope and meaning of the statute could be determined, con
tending they could neither understand the legislative
gloss nor establish its precise meaning. They were unable
to obtain a hearing, and asserted this forced them to
choose between the possibility of discharge and criminal
prosecution for taking the oath, or loss of employment for
refusal. Under these circumstances they instituted a suit
to have the oath and statute declared unconstitutional.
The Arizona Supreme Court upheld the constitutionality of
1 08
the oath, but the United States Supreme Court remanded
the decision for r e c o n s i d e r a t i o n ^ ^ light of their
recent decision in Baggett v. Bullitt. U p o n recon
sideration, the Arizona Supreme Court reaffirmed its
107. Arizona Rev. St., Sec. 38-231 (E) (Supp.
1956).
108. Elfbrandt v. Russell, 94 Ariz. 1, 381 P. 2nd
554 (1963).
109. Elfbrandt v. Russell, 378 U.S. 127 (1964).
110. 377 U. S. 360 (1964). See pp. 190-191
infra.
190
111
original judgment, • LJ- which was ultimately reversed by the
United States Supreme Court.
The final Supreme Court ruling in Elfbrandt was pre
ceded by two decisions involving public school teachers and
loyalty requirements, decisions which "made [Elfbrandt's]
outcome predictable."H3 The first was Cramp v. Board of
114
Public Instruction, which involved a Florida statute
requiring every State employee to swear in writing that he
would never lend his "aid, support, advice, counsel, or
influence to the Communist Party." Penalty for failing or
refusing to sign was immediate discharge. The Court voided
the statute on grounds that the wording was so vague and
uncertain that no one could be sure of its meaning. 'VJhat
do these phrases mean? . . . Could anyone honestly sub
scribe to the oath who had ever supported any cause with
contemporaneous knowledge that the Communist Party also
supported it?"^^
Baggett v. Bullitt. the second of the cases, was
the outgrowth of an action brought by faculty, staff, and
111. Elfbrandt v. Russell, 97 Ariz. 140, 397 P. 2nd
944 (1964).
112. Elfbrandt v. Russell, 384 U.S. 11 (1966).
113. Dailey, op. cit., p. 257.
114. 368 U.S. 278 (1961).
115. Ibid., at 286.
116. 377 U.S. 360 (1964).
191
members of the student body at the University of Washing
ton. Their suit sought to have declared unconstitutional
two Washington statutes requiring two separate oaths of
State employees. The first, passed in 1931, applied only
to teachers, and was required for application for or re
newal of a teaching credential. It required the person to
swear allegiance to and support the laws of the United
States and the State of Washington, and "by precept and
example promote respect for the flag and the institutions
of the United States and the State of Washington, reverence
for law and order and individual allegiance to the govern
ment of the United States."H? The 1955 Act^® applied to
all State employees, and additionally required an oath that
the employee was not knowingly a member of the Communist
Party or of any other subversive organization. Statements
made under oath were subject to penalties for perjury.
The Court held that both the oath requirements and the
supporting statutory provisions were invalid on their face
because their language was unduly vague, uncertain, and
overly broad.
When Elfbrandt reached the Court, then, the prece
dent had been established that the wording of loyalty
oaths and statutory requirements would be subjected to
117. Wash. Rev. Code, Sec. 28170.150 (Supp. 1966).
118. Wash. Rev. Code, Sec. 9.81.070 (Supp. 1966).
192
close scrutiny. Not only was this pattern continued, but
in addition new judicial limits were set on loyalty provi
sions .
Writing for a 5-4 majority, Mr. Justice Douglas
noted that it had long since been established that govern
ment may not proscribe knowing membership in an organiza
tion without showing a "specific intent" on the part of the
member to further the organization's illegal purposes.
In the opinion of Douglas, one who joins an organization
without the intent of accomplishing any of its illegal ob
jectives presents no danger to the State, and is constitu
tionally free from State restriction because of the First
Amendment guarantee of the right of free association. The
essence of this part of the decision was
that a State government cannot require its em
ployees to abstain from knowing membership in an
organization with certain unlawful aims, providing
penalties of discharge from employment and prose
cution for perjury, if the employee does not have
the specific intent of furthering these aims.120
Mr. Justice White, joined by Justices Clark, Harlan,
and Stewart, dissented, objecting to use of the Scales and
Aptheker precedents as a basis for the decision. These two
119. 384 U.S. 11 (1966) at 15-16. Douglas cites
Scales v. United States, 367 U.S. 203 (1961), and Aptheker
v. Secretary of State7~378 U.S. 500 (1964).
120. Robert P. Style, "Loyalty Oaths— A Further
Restriction," University of Pittsburgh Law Review, XXVIII,
No. 1 (0ctober"| 1966), p. 104.
193
cases, White urged, should be distinguished from Elfbrandt
on grounds that they involved merely statutory interpreta
tion, whereas Elfbrandt resulted in a declaration of un
constitutionality. White suggested that the majority had
misinterpreted prior loyalty oath cases, which he held had
clearly determined that government could prohibit knowing
membership in a subversive organization, regardless of
intent to uphold and further those aims. Further, the
dissent suggested that even if the criminal punishment
sections of the law were voided, the Court should have up
held the provisions barring employment.
Opinion regarding the ultimate impact of Elfbrandt
is mixed. Style suggests the Elfbrandt ruling was
"broader than necessary"^! in allowing a person to join an
organization, knowing of its illegal aims, so long as he is
not shown to have had the intent of fulfilling those aims.
Further, he contends that there was no need to declare the
Arizona law unconstitutional, inasmuch as the Arizona
courts had clearly construed the statute as requiring spe
cific intent. Finally, Style questions Douglas' assertion
that a person who knowingly joins an organization but dis
claims intent to further its aims presents no threat to
society.
121. Ibid., p. 105.
194
The person he describes poses no danger by him
self, but the organization, whose leaders pre
sumably share the unlawful purposes, does present
a danger. It follows that the organization in
creases in strength as its membership increases,
and the danger would increase whether or not all
of its members share all of its aims. . . . The
problem with the Elfbrandt decision is that it
would outlaw any type of legislation aimed at the
person who joins without specific intent.
On the other hand, the Albany Law Review commends
the view that "many organizations have both legal and il
legal purposes, and ... a complete prohibition of such
associations would be unconstitutional."123 Further, indi
cations are that "the Court will continue to employ a
strict approach toward State action in this area."124
A different course in analysis is pursued by the
Harvard Law Review, which views Elfbrandt as eliminating
the threat of criminal sanctions for violation of a loyal
ty oath. Criminal penalty beyond that which the State
could impose through normal criminal law is prohibited by
the decision. "... [D]ischarge from a position which
the employee could not have obtained without taking the
oath is not likely to be an effective deterrent to viola
tion of the provisions of the oath."1^5
122. Ibid., p. 109.
123. "Recent Decisions--Elfbrandt v. Russell,"
Albany Law Review, XXXI, No. 1 (January, 1967), p. 161.
124. Ibid., p. 163.
125. "The Supreme Court, 1966 Term: Elfbrandt v.
Russell, Harvard Law Review, LXibt, No. 1 (November, 1966),
p. 201.
195
Keyishian v. Board of Regents represents a further
extension of judicial restrictions on State attempts to
impose loyalty oath requirements on teachers. As in Adler
1 9 f i
v. Board of Education. New York's Feinberg Law was the
legislation under attack.
The original sections of what developed into the
Feinberg complex were first passed in 1949. They were de
signed to implement and enforce existing loyalty provisions
in the New York Education and Civil Service Laws. Through
this legislation, Section 3021 of the Education Law and
Section 705(3) of the Civil Service Law were amended to
require dismissal of teachers guilty of "treasonable or
seditious" acts. Section 105 was further amended to dis
qualify from State employment anyone: (a) advocating the
overthrow of the government by force, violence, or any un
lawful means, or (b) publishing any document urging unlaw
ful overthrow and adhering to the doctrine therein, or
(c) joining any group advocating such overthrow. Member
ship in the Communist Party was made prima facie evidence
of disqualification by Section 105.
In addition, the Feinberg Law added Section 3022 to
the Education Code giving the Board of Regents power to
adopt and enforce rules implementing Sections 3021 and
105. A declaration of policy which accompanied the
126. 342 U.S. 485 (1952). See pp. 171-75 supra.
196
legislation specifically declared that the intent was to
"eliminate subversive persons from the public school
system," inasmuch as "subversive propaganda can be dis
seminated among children of tender years by those who
teach them and to whom the children look for guidance,
authority, and leadership."127
Pursuant to this policy, the law directed the Board
of Regents to draw up a list of organizations found, after
inquiry, to be subversive. The Board was also required to
provide in its rules and regulations that "membership" in
any of the designated "subversive" organizations consti
tutes "prima facie evidence of disqualification for ap
pointment to or retention in any office or position in the
public schools of the State."128 Rul.es adopted by the
Board directed the authorities of each district to take
any action necessary to implement the following procedures:
Prior to any appointment, the appointing authority should
inquire of prior employers and others whether the candidate
had violated the statutory provisions prohibiting member
ship in a subversive organization; each year a State offi
cial must review the record of all teachers, and recommend
dismissal if there existed any evidence of knowing viola
tion of statutory provisions; after such recommendation,
127. New York Education Law, Sec. 3022, "Declara
tion of Policy."
128. New York Education Law, Sec. 3022 (2).
197
school district authorities must, within ninety days,
either bring charges or reject the recommendation.
In 1953, an amendment explicitly brought under
Feinberg provisions faculty members and employees of all
State-owned and operated colleges. Further, in 1956, the
Board of Trustees of tue State Colleges designed a
"Feinberg Certificate." Each person seeking an appointment
or renewal of appointment had to sign the certificate,
declaring that he had read the Regents' rules and under
stood that they constituted conditions of employment. Also
included was a declaration that the signer was not current
ly a member of a subversive organization, and that if he
ever had been, had so notified the President of the State
University. Signing was a necessary condition of original
employment; refusal to sign constituted grounds for dis
missal for insubordination. Later in 1956, the Certificate
was rescinded, with the announcement that no person would
be dismissed "solely" because of failure to sign. Thus,
although the specific disclaimer of Communist Party mem
bership was no longer demanded, failure to answer any
"relevant" questions of a superior was still considered
grounds for dismissal under statutory provisions.
It was this complex of laws which the Court origi
nally upheld in Adler, declaring the law to be constitu
tional on its face and capable of application. In
Keyishian, the Court not only reversed the holding of
198
constitutionality, but also specifically rejected Adler as
being in error.
Two basic premises were relied upon. First, the
prohibitions against "treasonable or seditious" conduct
and "advocacy" of violent overthrow of the government were
held to be unconstitutionally vague. The issue of vague
ness had not even been raised in Adler; but Keyishian,
through the opinion of Mr. Justice Brennan, held that a
teacher could not be expected to know whether speech must
have the specific intent of inciting to riot or violent
overthrow of the government in order to constitute grounds
for dismissal. Second, the legislation was declared
"overbroad" insofar as it denied public employment to mem
bers of subversive organizations who had no knowledge of
the illegal aims of the group.
What may be the ultimate impact of Keyishian can be
considered in light of some basic questions raised by
loyalty legislation:
1. Can there be a balancing of public or legisla
tive demands for teacher control as against
academic freedom?
2. What legitimate demands are relevant to this
particular employer-employee relationship?
3. What restrictions may a State place on a
teacher which it may not impose on the general
population?
4. Does the very nature of the teaching position
justify more rigorous interpretation of pre
ferred freedom doctrines than the Supreme Court
199
has been willing to recognize in criminal
prosecution under the Smith Act?
David P f a l z g r a f 129 suggests that in Keyishian the
Court has tipped the balance too strongly in favor of in
dividual rights at the expense of State interest. However,
in thus restricting the scope of State loyalty legislation,
Keyishian
neither resolves the controversy as to the neces
sity and propriety of State loyalty oaths or dis
claimers, nor gives any clear guidelines to State
legislatures for future loyalty legislation.
Indeed, even the dissent . . . suggests that
there may be no future at all for State loyalty
legislation: "the majority has by its broadside
swept away one of our most precious rights, name
ly, the right of self-preservation."130
Supporting the decision are those who believe that
imposition of loyalty requirements for a teaching position,
especially the disclaimer of membership in subversive or
ganizations, are unconstitutional in denying protected
rights of freedom of speech and association. They see in
the decision the emergence of a willingness on the part of
the Court to protect teachers from criminal prosecution
for advocacy of abstract doctrine. In addition, the deci
sion has been interpreted as pointing toward Court recog
nition of academic freedom as a protected right, inasmuch
as the Court indicated its willingness to allow an early
129. Pfalzgraf, op. cit., passim.
130. Ibid., p. 782. Citation from dissenting
opinion of Mr. Justice Clark, 385 U.S. 589 (1967) at 628.
200
test of the law because of the belief that "free expression
has an especially great public value in the academic con
text."131
In regard to the issue of criminal prosecution for
expression of political beliefs, Keyishian is seen as
clearing up a problem left unresolved by Elfbrandt. This
is accomplished
by making it clear that there need be no threat
of subsequent criminal prosecution for dismissal
from employment to be a constitutionally imper
missible sanction when imposed because of member
ship in an organization with knowledge of its
illegal aims but without a specific intent to
further them. More broadly, Keyishian seems to
establish that it is impermissible to condition
public employment upon the surrender of Consti
tutional rights which could not be abridged by
direct governmental action. If Keyishiau really
indicates that conditions upon public employment
are to be judged by the same strict standards as
apply to direct government interference with
speech, it would follow that public employees
could not be disqualified for any conduct which
could not be punished criminally.132
131. 385 U.S. 589 (1967) at 603.
132. "The Supreme Court, 1966 Term: Loyalty of
State Employees," Harvard Law Review, LXXXI, No. 1
(November, 1967), p. 169.
CHAPTER V
SUMMARY, PROJECTIONS, CONCLUSIONS
Chapter I presented as a framework for analysis the
following assertion: that the Federal government, which
has emerged as the major protector of individual rights in
criminal proceedings, has failed to extend these same
rights to the individuals it employs. Analysis of court
decisions undertaken in this dissertation verify that
until very recently this assertion was fully valid.
Several questions regarding this premise now need
to be more specifically considered: Does this "Great
Dichotomy" still exist? If so, is it as extreme as origi
nally asserted? If there have been changes, what has been
their direction? What future course of development might
be anticipated in light of recent decisions?
A simple "yes" or "no" answer to the question of
whether a "Great Dichotomy" exists is impossible to give.
That a discrepancy exists seems beyond dispute. That the
extent of the discrepancy has been reduced in certain areas
seems equally clear. Moreover, analysis undertaken in this
dissertation suggests that there may in reality be a
dichotomy within the dichotomy. This has come about be
cause the Supreme Court has required more scrupulous
201
202
observance by State governments than by the Federal govern
ment of constitutional protections in regard to dismissal
of employees.
The basic evidence for this assertion has already
been presented. Summarizing some of the major trends and
holdings at this point may help to bring into sharper focus
this assertion of the dichotomy within the dichotomy.
A major reason for judicial failure to compel ob
servance of due process requirements in Federal dismissals
had been judicial recognition of the doctrine of executive
discretion. First clearly stated in 1926,^ this doctrine
has never been specifically rejected, although it has un
dergone considerable interpretation and modification. For
example, when dismissing an employee because of lack of
fitness for the position, the executive must now demon
strate a rational relationship between employee conduct and
O
fitness. Yet, the courts have consistently declined to
inquire closely into the facts of such a relationship, and
have adhered to the position that fitness is largely a
matter for executive determination.^
1. Myers v. United States, 272 U.S. 52 (1926). See
pp. 11-12 supra for analysis.
2. Scott v. Macy, 349 F. 2nd 182 (D.C. Cir. 1965).
See pp. 14-16 supra for analysis.
3. See Eberlein v. United States, 257 U.S. 82
(1921), discussed at pp. 27-29 supra; Kellom v. United
States, 55 Ct. Cl. 174 (1920), discussed at p. 29 supra;
and Dew v. Halaby, 317 F. 2nd 582 (D.C. Cir. 1963), cert.
denied', 379 U.S. 904 (1964), discussed at p. 37 supra.
203
Recognition of executive discretion has been most
evident in dismissals for reasons of national security. It
is still accepted precedent that confrontation by witnesses
is not required in dismissals from sensitive positions, if
the law or executive order under which the dismissal was
effected do not require confrontation.^ Denial of this and
other procedural safeguards is acknowledged by several
legal scholars, including Paul A. Sweeney,^ who defends
such denial as necessary in security cases. He notes that
even prior to enactment of the specific loyalty and securi
ty programs discussed in Chapter II, "doubt as to loyalty"
constituted grounds for removal under appropriate Civil
Service regulations. Moreover, denial of confrontation
is held to involve no violation of First Amendment or due
process protections.
.... The [Loyalty-Security] program is not
based on thought control--there must be proof of
overt acts--nor is there a trial to which the
employee must consent; a hearing is entirely
optional with the employee after the charges are
served; he can request a hearing with its attend
ant limitations or he can resign.7
4. Bailey v. Richardson, 182 F. 2nd 46 (D.C. Cir.
1950), affirmed, 341 U.S. 908 (1951), discussed at pp. 81-
87 supra.
5. "People, Government, and Security: An Analysis
of Three Books and a Program," Northwestern University Law
Review, LI, No. 1 (March, 1956), pp. 79-83.
6. Ibid., p. 80.
7. Ibid., p. 82.
204
It may be argued that this view no longer prevails.
Most of the recent dismissal cases have not involved Feder
al security programs, and it is suggested that the loyalty
and security requirements have been abandoned. Little evi
dence was uncovered, however, to justify this argument.
The basic loyalty-security statutes and regulations still
stand, along with the precedents which originally upheld
them. An explanation of the lack of recent litigation in
volving these programs is suggested by Ralph S. Brown:
Some of this fearsome legislation, like other
anti-subversive laws in the past, may simply
fall into disuse. Some of it may be "repealed"
by the courts. If either of these things--
disuse or invalidation--becomes commonplace, it
may be assumed that public opinion is changing
too.8
If this is true, the obvious question then becomes: If the
regulations denying protection and the precedents upholding
them are still applicable, what protections are available
to the employee in the event that public opinion shifts
back again?
By contrast, a number of State provisions governing
dismissal have been declared unconstitutional because they
denied rights protected by the First, Fourth, or Fifth
Amendments. Since the 1951 opinion in Garner v. Board of
8. Ralph S. Brown, Jr., Loyalty and Security.
Employment Tests in the United States (New Haven: Yale
University Press, 1958), p. 330.
205
g
Public Works upholding stringent security requirements,
the trend has been clearly toward restricting state action
in favor of the extension of individual rights. Identifi
cation of some of the steps in this process will be suffi
cient to illustrate the trend.
Dismissal simply because of political affiliation or
association cannot be a bar to employment or cause for
dismissal.^ Nor can membership even in a subversive or
ganization, unless "specific intent" on the part of the
member to further the aims of the organization can be
demonstrated.^ States also are obligated to provide
notice and hearing as requirements of due process.^
Finally, no State may dismiss an employee for public criti
cisms of a superior absent a showing of "actual m a l i c e ,"13
nor may a State rely on a vaguely-drawn statute to compel
surrender of constitutional rights as a condition of
9. 341 U.S. 716 (1951), discussed at pp. 136-37
supra.
10. Wieman v. Updegraff, 344 U.S. 183 (1952) dis
cussed at pp. 138-40 supra; and Shelton v. Tucker, 364 U.S.
479 (1960), discussed at pp. 174-75 supra.
11. Elfbrandt v. Russell, 384 U.S. 11 (1966) dis
cussed at p " p " ! 188-194 supra"
12. Slochower v. Board of Education, 350 U.S. 551
(1956), discussed at pp. 175-181 supra I
13. Pickering v. Board of Education, 391 U.S. 563
(1968), discussed at pp. 161-171 supra.
206
employment.^ The degree to which the latter requirement
could conceivably restrict the States is suggested by
Pfalzgraf:
The Keyishian case illustrates the fact that no
matter how legitimate the State's concern, con
stitutional enforcement of substantive restric
tions can only be attained through a narrowly
drawn statute. Indeed the decision casts con
siderable doubt upon the ability of the legis
lature to draw any effective constitutional
loyalty statute controlling employment of uni
versity teachers. Even a statute which is
constitutional on its face may be constitu
tionally defective or seriously ineffective
in its application.15
Grounds for Extension of Protections
to Federal Employees
The precedents requiring State observance of consti
tutional rights in dismissal cases seem well established.
It is now in order to consider two recent decisions which
could provide the bases for a corresponding extension of
protections to Federal employees. Both incorporate prece
dents extending First Amendment guarantees of freedom of
association and political affiliation to private individu
als, and apply them to the particular circumstances of the
Federal employee.
14. Keyishian v. Board of Regents, 385 U.S. 589
(1967), discussed at pp. 195-200 supra.
15. David R. Pfalzgraf, "An Appraisal of Security
Legislation in Education in Light of Keyishian; A Proposed
Solution," Buffalo Law Review, XVI (Spring, T967) , p. 789.
207
The first of these cases admittedly cannot be re
garded as representing established law since the final
ruling was handed down by the Court of Claims. Further,
the reasoning of the opinion has not been applied by the
Supreme Court or in subsequent lower court decisions.
Nevertheless, the case is significant as indicative of a
16
possible trend. This case, Swaaley v. United States,
held that a civil servant has the right under the First
Amendment to petition for a redress of grievances, and
that absent a showing of actual malice as defined in the
New York Times rule, may not be removed on the basis of a
defamatory petition.
Swaaley, a classified civil servant and preference-
eligible veteran, had written a defamatory letter to the
Secretary of the Navy, charging his immediate superiors
with soliciting bribes in exchange for promotions. He was
dismissed by the Navy for failure to substantiate the
charges.
It is suggested that the decision is important in
that it represents a significant extension of a judicial
trend: that of gradual judicial limitation of what was
formerly virtually unlimited executive discretion in dis
missals.^ The first step in this trend came when the
16. 376 F. 2nd 857 (Ct. Cl. 1967).
17. See Chapter I, especially pp. 10-17 for a dis
cussion of the doctrine of executive discretion.
208
courts began to demand executive adherence to procedural
safeguards, and refused to allow dismissals contrary to
applicable laws or agency regulations and any motivated by
arbitrariness or caprice. In such cases, however, "the
dismissed litigants still had the burden of rebutting the
presumption of an agency's expertise in handling its own
affairs."18
More recently, there have been indications that the
courts will look more closely into alleged violations of
procedural rights, despite pro forma compliance with pro
cedural and statutory requirements. For example, a civil
servant may not be dismissed on the basis of evidence
1 Q
obtained through unreasonable search and seizure, nor
20
because of a confession made under duress.
Against these developments, the question of whether
civil servants enjoy the First Amendment right to petition
for redress of grievances reached the courts. This right
had been recognized by legislation which specifically per-
21
mitted the civil servant to petition members of Congress
18. "Recent Decisions. Administrative Law. Civil
Servant Cannot Be Dismissed for Defamatory Nonmalicious Pe
tition. Swaaley v. United States," The George Washington
Law Review, XXXVI, No. 2 (December, 1967), p. 448.
19. Saylor v. United States, 374 F. 2nd 894 (Ct.
Cl. 1967).
20. Scott v. United States, 160 Ct. Cl. 152 (1963).
21. 5 U.S.C. Sec. 7102 (Supp. II, 1967).
209
and which prohibited executive reprisals for such action.^2
However, this statutory right was severely restricted by
the interpretation that it might be lost if the employee,
by making unsubstantiated allegations in his petition, went
beyond the scope of permissible activity intended by Con
gress, causing the agency immediate and substantial harm.
23
This interpretation was established in Turner v. Kennedy,
upholding the dismissal of an FBI employee for writing
letters to a Senator and a Congressman containing allega
tions about his supervisors which he could not substanti
ate .
By contrast, Swaaley held that to make a civil serv
ant's employment dependent upon his ability to substantiate
the allegations in his petition amounts to self-censorship.
The right of a civil servant to transmit by petition in
formation about the operation of his department to superi
ors is not dependent upon a statutory grant, but is a
constitutional right protected by the First Amendment.
As previously indicated, Swaaley was an extension of
previous decisions involving First Amendment rights, among
24
them New York Times v. Sullivan. This decision protects
22. 5 U.S.C. Sec. 7101 (Supp. II, 1967).
23. 332 F. 2nd 304 (D.C. Cir.), cert, denied, 379
U.S. 901 (1964).
24. 376 U.S. 254 (1964).
210
the nonmalicious defamer of a public official from im
prisonment or civil damages; Swaaley extends the Times
rule to protect the civil servant in his job. As the
court noted, "any regulation which would compel the critic
of official conduct to guarantee the truth of all his
factual assertions--and to do so on pain of dismissal from
his job--leads to 'self-censorship. . . ."'25 function
of a petition was seen as analogous to that of a newspaper,
with better public administration being one of the common
objectives of both. Moreover, it was suggested that the
illegal administrative practices alleged by plaintiff would
never have reached public attention, presumably to the
detriment of both the public and the agency, had the right
to petition not been fully protected.
o / :
The second case, United States v. Robel, is of
more significance because it covers both a wider range of
issues and also because it represents a Supreme Court
ruling on a basic constitutional question. Eugene Frank
Robel, an avowed Communist Party member, had been an em
ployee at the Todd Shipyards in Seattle for more than ten
years. In May, 1963, he was indicted for violating the
section of the Subversive Activities Control Act^? which
25. 376 F. 2nd 857 (1967) at 861-62.
26. 389 U.S. 258 (1967).
27. 64 St. 992 (1950), 5 U.S.C. Sec. 784 (5)(A)(i)
(d) (1964). The Subversive Activities Control Act will
henceforth be referred to as SACA.
211
made it unlawful for a member of the Communist Party or a
Communist-action organization under a final registration
order of the Subversive Activites Control Board^® to be
employed in any capacity in a defense facility.
The indictment charged that a final SACB order di
recting the Communist Party to register as a Communist-
action organization had been in effect since October, 1961;
that the Secretary of Defense had designated the Todd
Shipyards as a "defense facility" in August, 1962; and that
Robel had "unlawfully and willfully" taken employment in a
defense facility with knowledge and notice of both the SACB
order and designation by the Secretary of Defense.
Robel first moved to have the indictment dismissed
in June, 1963, but the District Court did not grant the
motion until October, 1965.^ The reason for the delay
was that the District Court was awaiting a final decision
on two cases then before the Supreme Court, Aptheker
v. Secretary of State,^ and United States v. Brown.^ In
28. This Board was established by SACA, and will
be henceforth referred to as SACB.
29. United States v. Robel, No. 50676 (D.C.W.D.
Wash. 1965).
30. 378 U.S. 500 (1964). This held that Section 6
of SACA, which barred application for or use of a passport
by a member of a designated Communist-action organization
was an undue restriction on the right to travel abroad and
therefore an unconstitutional abridgement of the liberty
protected by the Fifth Amendment.
31. 381 U.S. 437 (1965). This held that exclusion
212
the latter, the Ninth Circuit Court of Appeals'^ dealt with
the constitutional issues. In affirming the decision, how
ever, the Supreme Court rejected the broad grounds relied
on by the Appellate Court, Mr. Chief Justice Warren's
majority opinion stating that it was "unnecessary” to con
sider any of the Ninth Circuit's grounds, including the
First Amendment.
When the District Court ruled on Robel's motion in
1965, it adhered to the narrow route suggested by the
Supreme Court's handling of Brown. It dismissed the in
dictment, not on constitutional grounds, but rather on the
grounds that it was defective, inasmuch as it did not
allege either active and knowing membership or specific in
tent, as required by the guidelines established in Scales
34
v. United States. By taking this approach, the District
Court "did not come to grips with the question of the con
stitutionality of the statute itself. Rather, it
of a Communist Party member from an official position in a
labor union violated the First Amendment right of free
association.
32. Brown v. United States, 334 F. 2nd 488 (9th
Cir. 1964).
33. 381 U.S. 437 (1965) at 440.
34. 367 U.S. 203 (1961). This decision limited the
power of Congress to proscribe membership in an associa
tion. The reasoning was that an organization may have both
legal and illegal aims, and that membership cannot be pro
hibited absent proof that the individual adheres to and
promotes the illegal as well as the legal aims.
213
considered the requirements for proving guilt under the
statute."35 Mere membership was rejected as inadequate
grounds for conviction, and the government failed to prove
the essential elements of knowing membership and specific
intent.
The Supreme Court affirmed the result in Robel, but
in so doing rejected the narrow grounds and avoidance of
constitutional issues which characterized the District
Court decision. Two tests, balancing and broadness, were
applied by the Supreme Court. The section of SACA in
question was held to meet constitutional requirements in
balancing individual rights against state interest. How
ever, the majority opinion held the section unconstitution
al because of overbreadth. It held that the statute "casts
its nets across a broad range of associational activities,
indiscriminately trapping membership which can be constitu
tionally punished"36 and that which cannot. Under provi
sions of the statute, it was irrelevant whether the member
might be an inactive or passive member of the organization,
or whether he might be unaware of or disagree with its
unlawful aims. It was also irrelevant that the position
35. "Recent Decisions. Constitutional Law. Sec
tion of Subversive Activities Control Act Making It Unlaw
ful for Members of Communist-Action Organizations to Work
in Any Defense Facility Declared Unconstitutional--United
States v. Robel," Syracuse Law Review, XIX, No. 3
(Spring, 1968), p. /87.
36. 389 U.S. 288 (1967) at 265-66.
214
held by the employee might be non-sensitive.
Thus, Section 5 (A) (i)(d) contains the fatal de
fect of overbreadth because it seeks to bar em
ployment both for association which may be pro
scribed and for association which may not be
proscribed consistently with First Amendment
rights.37
While opinion as to the ultimate impact of Robel
varies, there exists complete agreement that the decision
significantly extends constitutional protections afforded
Federal employees. The University of Florida Law Review
observes that the decision "represents an inclination to
extend more rights of association to unpopular political
organizations because the contrary Scales rationale could
have been used here had the Court so chosen."^® This com
mentary does not claim the decision prohibits all govern
ment restrictions on association. In fact, nothing in the
decision suggests that "government could not, through
narrowly drawn legislation, keep from sensitive positions
in defense facilities those who would use their posts to
impede the progress of the nation's production."-^
This same general view is also advanced by the
37. Ibid., at 266.
38. "Case Comments. Constitutional Law. Mere Mem
bership in a Subversive Organization Will Not Preclude
Defense Facility Employment," University of Florida Law
Review, XX, No. 3 (Winter, 1968), p. 421.
39. Ibid.
215
Syracuse Law Review which suggests that the decision is
significant for three major reasons: 1) because of its
impact on SACA; 2) because of the extension of the rights
of association under the First Amendment; and 3) because
of clarification of the broadness test. The decision does
not prevent the government from protecting the defense
establishment. Rather, it indicates that "the government
can keep some Communists out of all defense facilities and
all Communists out of some defense facilities but that it
cannot keep all Communists out of all defense facili
ties."^® More importantly, the opinion also clearly ex
pands the right of freedom of association by asserting
that "a statute cannot, in the name of national defense,
establish guilt by association alone."41
Such an extension of First Amendment rights is in
and of itself significant. Yet, it is suggested by
/ o
Gunther that the long-range Implications of Robel may be
far more significant. He suggests that, at first glance,
Robel seems to be
40. "Recent Decisions. Constitutional Law.
United States v. Robel," Syracuse Law Review, op. cit.,
p. 789.
41. Ibid.
42. Gerald Gunther, "Reflections on Robel: It's
Not What the Court Did, But the Way That It Did It,"
Stanford Law Review, XX (June, 1968), pp. 1140-49.
216
one of those middle-range cases that comprise the
bulk of the Supreme Court's output each Term—
cases of less than major yet more than trivial
impact, cases that tend to be overlooked in the
mass when the time comes for end-of-Term assess
ments. Yet Robel deserves better than that: it
may be one of those cases that hint at changing
fashions in constitutional adjudication; it may
offer tantalizing glimpses of straws that sug
gest the direction of shifting wind.
The importance of the decision is not that it af
firmed the District Court dismissal of the indictment. It
is rather in the grounds chosen, "and especially in the
grounds cast aside. The majority relied on the broadest of
all bases: the Act of Congress conflicted with the First
Amendment to the Constitution."44
When the case first reached the Court in November,
1966, it appeared that it would be decided on the same nar
row grounds relied upon by the District Court. However, in
June, 1967, the Court ordered reargument, with directions
to consider a new issue: whether delegation of authority to
the Secretary of Defense to designate "defense facilities"
violated constitutional requirements.
In the end, however, this and other grounds were
overlooked as the Court ruled squarely that the statute
violated the First Amendment. That other grounds were
available had the Court chosen to use them was acknowledged
43. Ibid., p. 1140.
44. Ibid., p. 1141.
217
by Warren's opinion, but only in a footnote. Noted were
denial of procedural and substantive due process under the
Fifth Amendment; the delegation of authority issue which
had been the basis for reargument; and the claim that the
statute constituted a bill of attainder. All these grounds
were brushed aside in the footnote, which concluded with
the statement: "Because we agree that the statute is con
trary to the First Amendment, we find it unnecessary to
consider the other constitutional arguments.
What is particularly significant in Robel is that in
regard to dismissal cases, "the traditional pattern had
been stood on its head: the Court's approach was the re
verse of that characteristic of its handling of security
cases for most of the past decade and a half. . . ."4-6
For the first time, the Court deliberately sought to rule
directly on the broadest possible constitutional issues,
rather than on narrow grounds, which were clearly and con
veniently available.
How extensively this approach will be applied in
future cases remains to be seen. Yet, in conjunction with
decisions extending First Amendment protections in areas
other than Federal employment, it is suggested that grounds
now exist for further extension of protections available
45. 389 U.S. 258 (1967) at 261, n. 5.
46. Gunther, op. cit., p. 1141.
218
to Federal employees, including a challenge of the consti
tutionality of the Hatch Act.
Bases for Challenge of the Hatch Act
In the twenty-three years since United Public
Workers v. Mitchell^ upheld the constitutionality of the
Hatch Act, a number of decisions have cast doubt on the
viability of the reasoning and principles established in
that decision. Assuming a new challenge to the Act, what
new grounds might be cited, and what are the possibilities
for a declaration of unconstitutionality?
One argument would be that the Act violates the
equal protection clause of the Fourteenth Amendment, an
issue not raised in Mitchell. At the time of the Mitchell
decision,
the Court's construction of the relationship
between equal protection and due process had not
developed sufficiently to permit the raising of
the equal protection argument. . . . It is sub
mitted, however, that, due to the extension of
the areas covered by due process and equal pro
tection, this argument can be asserted in a
future attack upon the Hatch Act.48
One step in the extension derives from the decision
47. 330 U.S. 75 (1947). See pp. 54-65 supra for
analysis.
48. Robert M. Madama, Jr.. "The Hatch Act--A Con
stitutional Restraint of Freedom? ' Albany Law Review,
XXXIII, No. 2 (Winter, 1969), p. 354.
219
49
in Bolling v. Sharpe, a companion case to Brown v. Board
of Education. I n Bolling, the Court held that segrega
tion in public schools in the District of Columbia was a
violation of equal protection. Unlike Brown, however, in
which statutory segregation of State school systems was
declared unconstitutional, the Court could not rely on the
Fourteenth Amendment, and was thus compelled to seek other
grounds. The Court acknowledged that discriminatory treat
ment of individuals might be considered a denial of due
process as well as a denial of equal protection, and sug
gested that "discrimination may be so unjustifiable as to
be violative of due process.This line of reasoning
brings statutory discrimination under the purview of the
Fifth Amendment, and makes potentially applicable to the
Hatch Act the principles developed in a series of cases
dealing with the legitimacy and reasonableness of classi
fications .
In these cases the Court has held that its duty to
determine whether certain classifications Violate equal
protection does not end merely with a determination that
each individual within the specific class is afforded like
49. 347 U.S. 497 (1954).
50. 347 U.S. 483 (1954).
51. 347 U.S. 497 (1954) at 499.
220
treatment. There is the further responsibility to
"reach and determine the question whether the classifica
tions drawn in a statute are reasonable in light of its
purpose.A further extension of this reasoning emerged
54
from Harper v. Virginia Board of Education, with the
Court asserting that it had a positive duty to protect
fundamental freedoms from violations of equal protection,
and that "classif ic ation which might invade or restrain
[fundamental freedoms] must be closely scrutinized and
closely confined."55
Such a line of reasoning seems directly applicable
to the Hatch Act, which does establish categories, and
which does afford different treatment to employees within
the categories established. For example, not all employees
are prevented from participating in political activities,
nor are non-partisan political acts restrained. Clearly,
then,
52. McLaughlin v. Florida, 379 U.S. 184 (1964).
53. Ibid., at 193.
54. 383 U.S. 663 (1966).
55. Ibid., at 670. This does not imply that all
classifications are invidious or discriminatory, for the
Court has clearly established that classifications may be
legitimate and necessary. In fact, there is virtually no
law which does not in some way discriminate or establish
classifications. See, for example, Patsone v. Pennsyl
vania, 232 U.S. 138 (1914); Williamson v. Lee Optical Co.,
348 U.S. 343 (1955); and Buck v. Bell, 224 U.S. 200
(1911).
221
the Act does attempt to create classifications
among Federal employees and afford different
treatment to these employees based upon the
classes in which the employee is to be found.
If it is accepted that the Hatch Act was de
signed to prevent "pernicious political activi
ties" and to promote an efficient and dependable
Civil Service, the distinctions made by the
statute as to employees covered by and those
exempt from the Act, and the political activi
ties prohibited and those allowed by the Act
are not reasonable in light of its purpose.56
For it is the highest officials, those exempted by the Act,
who are in a position to cause the most harm through par
tisan activity, as well as being the most likely channels
of "governmental favor" which the Act sought specifically
to dispel. Thus, those restricted by the Act are not those
from whom the "evil is mainly to be feared."
In addition to denial of equal protection, there are
additional grounds on which Mitchell seems vulnerable. One
of these emerged from the decision in Shelton v. Tucker,^7
in which the Court stated that
even though the governmental purpose be legiti
mate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental
personal liberties when the end can be more nar
rowly achieved. The breadth of legislative
abridgement must be viewed in the light of less
drastic means for achieving the same basic pur
pose . °
56. Madama, op. cit., pp. 355-56.
57. 364 U.S. 479 (1960). At issue was an Arkansas
statute which required public employees to take a loyalty
oath and to affirm that they were not and had not been a
member of a subversive organization. The statute was held
unconstitutional. See pp. 174-75 supra.
58. Ibid., at 488.
222
In light of this, it would then appear that in any future
challenge of the Hatch Act, "the government will have to
prove that there are no less drastic means available to
provide an efficient civil s e r v i c e . "59 Such proof may be
difficult to accomplish to the satisfaction of the Court
in view of the requirement of competitive examinations for
classification for entrance into and promotion within the
Civil Service.
This series of developments comprises part of what
The Georgetown Law Journal characterizes as a "changing
constitutional climate" regarding civil rights of Federal
employees.60 The basis for this changing climate may be
traced to the decision in New York Times v. Sullivan^ and
the development of the concept of "actual malice." Some
early applications of the concept are seen in Swaaley v.
62 63
United States and Pickering v. Board of Education. As
a result of these decisions, the discretion of the dis
missing agency has been further restricted in that it must
59. Madama, op. cit., p. 352.
60. "Notes. The First Amendment and Public Em
ployees. Times Marches On," The Georgetown Law Journal,
LVII, No. T (October, 1968), pp. 134-61.
61. 376 U.S. 254 (1964). See pp. 163-64 supra for
analysis.
62. 376 F. 2nd 857 (Ct. Cl. 1967). See pp. 206-
210 supra for analysis.
63. 391 U.S. 563 (1968). See pp. 161-171 supra
for analysis.
223
now demonstrate rather than merely allege unfitness because
of statements, conduct, or associations of the employee.
A further basis for challenge is suggested by the
f s k .
decision in Elfbrandt v. Russell, in which the Court held
that loyalty oaths may be directed only at those who have
the "specific intent" of furthering the goals of the Com
munist Party. As applied to the Hatch Act, Elfbrandt poses
the following issue: The "specific intent" requirement in
Elfbrandt might be interpreted as an expression of the
"clear and present danger" doctrine, since,
in order to pose such a danger, the actor must be
resolved to bring about the undesirable result.
Thus, it is arguable, that, in order to validly
come within the provisions of the Hatch Act,
the employee must have participated in partisan
activity to the extent that he has endangered or,
at least, is about to endanger the efficiency of
some part of the Civil S e r v i c e . 65
Finally, it is urged that some of the principles
f i f i
emerging from Griswold v. Connecticut could serve as
64. 384 U.S. 11 (1966). See pp. 188-194 supra for
analysis of this case as it related to teacher dismissals.
65. Madama, op. cit.. pp. 352-53.
66. 381 U.S. 479 (1965). At issue was a Connecti
cut statute which made unlawful the dissemination of con
traceptive devices or information regarding their use. In
a decision which included five concurring opinions, the
Court invalidated the statute on grounds that it consti
tuted invasion of privacy, a right which could be derived
from an extension of the specific rights contained in the
First Amendment through application of the Ninth Amend
ment .
224
grounds for challenging the constitutionality of the Hatch
Act. The Court included the "right to associate" among the
"penumbral" or "peripheral" rights of the First Amendment.
Membership in and participation in the activities of a
political party would seem to be legitimately within the
framework of a protected right to association. Thus, any
attempt to limit this right "would have to fall within the
traditional limitations within which the government may
permissibly act."67
In light of the above, it is suggested that the
Hatch Act may in the future be successfully challenged.
This is not to suggest that legislation regulating public
employment is wholly unnecessary, undesirable, or unconsti
tutional, for Congress has the definite right and duty to
protect against misuse of public funds and use of public
office to gain purely partisan political ends. Such regu
lation, however, must at the same time provide the full
protection of rights guaranteed under the First, Fourth,
Fifth, Sixth, and perhaps Ninth Amendments. Further, such
legislation should not treat public employees as second-
class citizens by creating arbitrary and discriminatory
classifications.
In final conclusion, it would seem that a dichotomy
67. Madama, op. cit., p. 353.
225
still exists, and that there is a need for still greater
protection of the civil rights of public employees. This
is particularly true in those cases involving loyalty,
security, access to classified information, and the right
to participate in political activity. Recent developments,
however, have extended the protections against totally
arbitrary discharge, and contain the principles for a much
greater extension of protections.
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Creator Weymann, Charles Frederick (author)

Core Title Civil Rights And The Public Employee. An Analysis Of Legal Protections Available To Public Employees Dismissed Or Facing Dismissal

Degree Doctor of Philosophy

Degree Program Political Science

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,political science, general

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Christol, Carl Q. (committee chair), Anderson, Totton J. (committee member), Fertig, Norman R. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-452479

Unique identifier UC11363112

Identifier 7107748.pdf (filename),usctheses-c18-452479 (legacy record id)

Legacy Identifier 7107748

Dmrecord 452479

Document Type Dissertation

Rights Weymann, Charles Frederick

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the au...

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