Beilan v. Board of Public Education, School District of Philadelphia/Dissent Brennan

Mr. Justice BRENNAN, dissenting.

It is instructive on occasion to ask why particular cases are brought before this Court for review. The Court has said again and again that the incorrectness of a decision of a court below-and especially of a state court-is not sufficient reason for us to exercise our discretionary power to bring the case here. There must be 'special and important reasons therefor.' Sup.Ct.Rule 19(1), 28 U.S.C.A. We must, therefore, ask ourselves the question: What special character and importance of the right asserted justified our taking these cases for review?

The Court treats the cases as though the only right involved were the right of an unreliable subway conductor and an incompetent schoolteacher to hold their jobs. But if that were really all that was involved in these cases, I fail to see why it should take some nine pages in each case to justify the State's action. I can scarcely believe thats such concern would be displayed if the question were whether there was evidence to show that Lerner was unreliable about getting the subway doors opened promptly at each station, or that Beilan was incompetent as an algebra teacher. It is obvious that more is at stake here than the loss of positions of public employment for unreliability or incompetence. Rather, it is the simultaneous public labeling of the employees as disloyal that gives rise to our concern.

New York and Pennsylvania have publicly announced that the subway conductor and teacher are disloyal Americans. This consequence of the States' actions is devastating beside the loss of employment. In each case a man's honor and reputation are indelibly stained. 'There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy.' Wieman v. Updegraff, 344 U.S. 183, 190-191, 73 S.Ct. 215, 218, 97 L.Ed. 216. The petitioners thus not only lose their present jobs, but their standing in the community is so undermined as doubtless to cost them most opportunities for future jobs.

Moreover, the States' actions touch upon important political rights which have ever warranted the special attention of the courts. It may be stated as a generality that government is never at liberty to be arbitrary in its relations with its citizens, and close judicial scrutiny is essential when state action infringes on the right of a man to be accepted in his community, to express his ideas in an atmosphere of calm decency, and to be free of the dark stain of suspicion and distrust of his loyalty on account of his political beliefs and associations. N.A.A.C.P. v. State of Alamama, 357 U.S. 449, 78 S.Ct. 1163. It is these rights which stand before the bar today, and it is in the awareness of their implications that these cases must be decided.

The people of New York and Pennsylvania have voiced through their legislatures their determination that the stain of disloyalty shall not be impressed upon a state employee without fair procedures in which the State carries the burden of proving specific charges by a fair preponderance of evidence. Cf. Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. In the New York Security Risk Law and the Pennsylvania Loyalty Act, 65 P.S. § 211 et seq., the States have endeavored to provide the traditional Anglo-American standards of procedural due process for the ascertainment of guilt. Yet this Court today finds no denial of due process in the palpable evasion of these standards of fair play by administrative officials. This Court refuses to pierce the transparent denials that each of these employees was publicly branded disloyal. The Court holds that we are bound by the definition of state law pronounced by the States' high courts that the dismissals were for unreliability and incompetency. Of course, we accept state law as the high court of a State pronounces it, but certainly our duty to secure to the individual the safeguards, embodied in due process, against a State's arbitrary exercise of power is no less when the state courts refuse to recognize what his in fact occurred. Cf. Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. See also Broad River Power Co. v. State of South Carolina ex rel. Daniel, 281 U.S. 537, 540, 50 S.Ct. 401, 402, 74 L.Ed. 1023. In my view the judgments in both cases must be reversed because each petitioner has been branded a disloyal American without the due process of law required of the States by the Fourteenth Amendment. 'Strict adherence to required legal procedures, especially where one's loyalty is being impugned, affords the greatest and, in last analysis, the ultimate assurance of the inviolability of our freedoms as we have heretofore known them in this Country. Least of all, should they be impaired or trenched upon by procedural shortcuts.' Board of Public Education School District of Philadelphia v. Beilan, 386 Pa. 82, 99, 125 A.2d 327, 335 (Jones, J., dissenting).

In response to the outbreak of hostilities in Korea in 1950 the New York Legislature, early in its next session, enacted its Security Risk Law, Laws 1951, c. 233. Section 1 of the Act is a declaration of legislative finding that the Korean hostilities had brought about the existence 'of a serious public emergency in this state' and that 'the employment of members of subversive groups and organizations by government presents a grave peril to the national security.' Section 5 of the Act provides that the appointing officer may transfer or suspend a person occupying a position within a 'security agency' of the State after a finding based 'upon all the evidence' that, 'because of doubtful trust and reliability, the employment of such person in such position would endanger the security or defense of the nation and the state.' Pursuant to § 3 of the Act the State Civil Service Commission determined in 1953 that the New York Transit Authority is a 'security agency' for purposes of the Act. In 1954, appellant Lerner, a subway conductor, was directed to appear before the Department of Investigation of the City of New York. On this and a subsequent appearance he refused to answer the question whether he was then a member of the Communist Party on the grounds that his answer might tend to incriminate him.

When this information was brought to the attention of the Transit Authority they sent a notice to appellant advising him that he was suspended under § 5 of the Security Risk Law because 'reasonable grounds exist for belief that, because of doubtful trust and reliability, your employment in the position of Conductor will endanger the security or defense of the nation and state.' The Transit Authority specified the grounds for this belief: (Y)ou refused to answer questions as to whether you were then a member of the Communist Party and invoked the Fifth Amendment to the Constitution of the United States.' Appellant brought this action in the New York state courts alleging, inter alia, that the finding that he was a security risk within the meaning of the New York statute is wholly without evidence and therefore violative of the Due Process Clause of the Fourteenth Amendment. The New York courts dismissed this contention by the following reasoning: (1) appellant's refusal to answer whether he was then a member of the Communist Party proves a lack of candor; (2) the lack of candor proves that he was of doubtful trust and reliability; and (3) doubtful trust and reliability proves further that appellant was a security risk within the meaning of the Act. This Court, without discussion, follows this chain of reasoning. But careful analysis, I believe, shows that it is fallacious and leads to an arbitrary result.

The proper consideration of this case requires, I repeat, that the true issue be stated with clarity. We are concerned with far more than, in the Court's phrase, 'the validity of appellant's dismissal from his position as a subway conductor in the New York City Transit System.' The issue is, rather, the validity of his dismissal as a security risk. The difference is profound, as I have suggested, for the label 'security risk' inevitably invites in the public mind the deep suspicion of disloyalty, namely, that he is, in the words of the statute, a threat to 'the security or defense of the nation and the state.'

Of course, the term 'security risk' is not synonymous with 'disloyal.' In certain positions-such as those involving access to secret information, for instance-an employee who is an alcoholic or merely too talkative may well be considered a risk to security. But this is not such a case. Lerner handled no secrets. Common sense tells us that if a subway conductor is a security risk at all while at work he is such because he may engage in sabotage. Indeed, the record makes clear that it was just this danger that motivated the New York authorities in extending the Security Risk Law to the Transit System.

The only evidence relied upon to show that Lerner is a disloyal person is his refusal to answer the question whether he was a member of the Communist Party. It might be conceded that the question was relevant to his qualifications for his job and therefore properly asked. But once the propriety of the question was established, the New York Court of Appeals approved treating the nature of the question as though it were irrelevant to the determination of the ultimate fact of disloyalty. And this Court too says that the finding that Lerner is a security risk could be based on a refusal to 'give any other information about himself which might be relevant to his employment.' 78 S.Ct. 1316. But can we suppose that a subway conductor would be branded a security risk if he refused to answer a question about his health? Of course the answer is no, although the question is plainly relevant to his qualifications for employment. It may well be that in such a case the State would be fully justified in discharging the employee as 'untrustworthy and unreliable.' But one would hardly stretch reason so far as further to label him a 'security risk.' To do so would be arbitrary in the extreme. It is equally arbitrary here, for New York and this Court expressly disavow the drawing of any inferences from the nature of the question asked or from Lerner's refusal to answer it. Nonetheless, by invoking the formalized procedures of its Security Risk Law, New York has publicly announced that it possesses the evidence required by the terms of that statute to justify the conclusion that Lerner is in fact a disloyal American. Yet the record is wholly devoid of the essential requisite of evidence to support the ultimate finding of disloyalty. Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. In this plainly arbitrary manner, Lerner is gratuitously defamed, his honor and reputation indelibly stained. And the wound is far deeper than the occasion demands, for certainly New York cannot lack procedures under which he could have been discharged without blemishing his name.

Here also, the Court has not, in my opinion, stated or decided the true issue of due process tendered by this case. I doubt that a meritorious question for our review would be presented if the issue was, as the Court says, the constitutional validity of a dismissal solely for refusal of the teacher to answer the relevant questions asked by the School Superintendent in private interviews. I might agree that the Due Process Clause imposes no restraint against dismissal of a teacher who refuses to answer his superior's questions asked in the privacy of his office and related to the teacher's fitness to continue in his position.

But in reality Beilan was not dismissed by the Pennsylvania school authorities upon that ground. The question whether he had been an officer in the Communist Party in 1944 was first asked of Beilan by the Superintendent at a private interview on June 25, 1952. Beilan did not refuse at that time to answer but asked permission to consult counsel. The Superintendent summoned him again on October 14, 1952, and it was on that date that Beilan advised the Superintendent that he declined to answer that or similar questions. The Superintendent had told Beilan at the first interview that the question was asked because the Superintendent had information which reflected on Beilan's loyalty. Almost fourteen months elapsed before Beilan was suspended and the charges preferred which led to his dismissal. In that interval Beilan's superiors had twice rated him in the high satisfactory range of competency. Had the authorities seriously regarded Beilan as incompetent because of his refusal to answer the Superintendent's question they would hardly have waited so long before suspending him. The record is clear that proceedings were actually initiated not because of that refusal to answer but because on November 18, 1953, Beilan asserted the privilege against self-incrimination under the Fifth Amendment when interrogated at a publicly televised hearing held in Philadelphia by a Subcommittee of the Committee on Un-American Activities of the House of Representatives. Beilan testified at that hearing that he was not then a member of the Communist Party and had never advocated the overthrow of the Government by force or violence but pleaded the protection of the Fifth Amendment when asked questions directed to past party membership and activities. Five days later, on November 23, 1953, the Superintendent notified Beilan that he had been rated 'unsatisfactory' because he had refused to answer the Superintendent's question and also because '(y)ou invoked the Fifth Amendment of the Federal Constitution' when questioned as to 'past associations with organizations of doubtful loyalty' by the Subcommittee. The opinion on Beilan's administrative appeal which sustained his dismissal by the Board of Education makes it clear that the authorities viewed Beilan's invocation of the Fifth Amendment before the Subcommittee as an admission of disloyalty. The opinion states: '(B)y all the concepts of logic and reason the teacher admits that he has done something for which he might be prosecuted criminally.' It is this administrative record which Beilan must present to his next employer. Cf. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503.

The Court of Common Pleas found that the administrative proceedings were actually concerned solely with the question of Beilan's suspected disloyalty and reversed upon the ground that 'the legislature intended to deal with the matter of loyalty solely by the method of procedure provided in the (Pennsylvania) Loyalty Act.'

The Pennsylvania Supreme Court, however, did not pass upon the question of the propriety of the inference of disloyalty drawn by the administrative authorities from Beilan's invocation of the Fifth Amendment before the Subcommittee. That question is, therefore, not before us. The Pennsylvania Supreme Court held that the action of the authorities might be sustained solely because Beilan had refused to answer the Superintendent's question. But this is to sustain a finding of Beilan's disloyalty without competent evidence of the fact. As in Lerner the inference of disloyalty is arbitrary in the extreme. Yet Pennsylvania, like New York in the Lerner case, publicly announces contrary to the fact that it possesses competent evidence justifying the conclusion that Beilan is in fact a disloyal American. In my view Beilan also is, in that arbitrary manner, denied due process of law in violation of the Fourteenth Amendment.

I would reverse both judgments.