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

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The holding of the Court that the teacher in the Beilan case and the subway conductor in the Lerner case could be discharged from their respective jobs because they stood silent when asked about their Communist affiliations cannot, with due deference, be squared with out constitutional principles.

Among the liberties of the citizens that are guaranteed by the Fourteenth Amendment are those contained in the First Amendment. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. These include the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation. The Court put the matter succinctly in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628:

'We can have intellectual individualism and the rich cultural     diversities that we owe to exceptional minds only at the      price of occasional eccentricity and abnormal attitudes. When     they are so harmless to others or to the State as those we      deal with here, the price is not too great. But freedom to     differ is not limited to things that do not matter much. That     would be a mere shadow of freedom. The test of its substance     is the right to differ as to things that touch the heart of      the existing order.

'If there is any fixed star in our constitutional     constellation, it is that no official, high or petty, can      prescribe what shall be orthodox in politics, nationalism,      religion, or other matters of opinion or force citizens to      confess by word or act their faith therein.'

We deal here only with a matter of belief. We have no evidence in either case that the employee in question ever committed a crime, ever moved in treasonable opposition against this country. The only mark against them-if it can be called such is a refusal to answer questions concerning Communist Party membership. This is said to give rise to doubts concerning the competence of the teacher in the Beilan case and doubts as to the trustworthiness and reliability of the subway conductor in the Lerner case.

Our legal system is premised on the theory that every person is innocent until he is proved guilty. In this country we have, however, been moving away from that concept. We have been generating the belief that anyone who remains silent when interrogated about his unpopular beliefs or affiliations is guilty. I would allow no inference of wrongdoing to flow from the invocation of any constitutional right. I would not let that principle bow to popular passions. For all we know we are dealing here with citizens who are wholly innocent of any wrongful action. That must indeed be our premise. When we make the contrary assumption, we part radically with our tradition.

If it be said that we deal not with guilt or innocence but with frankness, the answer is the same. There are areas where government may not probe. Private citizens, private clubs, private groups may make such deductions and reach such conclusions as they choose from the failure of a citizen to disclose his beliefs, his philosophy, his associates. But government has no business penalizing a citizen merely for his beliefs or associations. It is government action that we have here. It is government action that the Fourteenth and First Amendments protect against. We emphasized in N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, that freedom to associate is one of those liberties protected against governmental action and that freedom from 'compelled disclosure of affiliation with groups engaged in advocacy' is vital to that constitutional right. We gave protection in the N.A.A.C.P. case against governmental probing into political activities and associations of one dissident group of people. We should do the same here.

If we break with tradition and let the government penalize these citizens for their beliefs and associations, the most we can assume from their failure to answer is that they were Communists. Yet, as we said in Wieman v. Updegraff, 344 U.S. 183, 190, 73 S.Ct. 215, 218, 97 L.Ed. 216, membership in the Communist Party 'may be innocent.' The member may have thought that the Communist movement would develop in the parliamentary tradition here, or he may not have been aware of any unlawful aim, or knowing it, may have embraced only the socialist philosophy of the group, not any political tactics of violence and terror. Many join associations, societies, and fraternities with less than full endorsement of all their aims.

We compound error in these decisions. We not only impute wrongdoing to those who invoke their constitutional rights. We go further and impute the worst possible motives to them.

As Judge Fuld said in dissent in the Lerner case, 'It is a delusion to think that the nation's security is advanced by the sacrifice of the individual's basic liberties. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alien procedures or with a denial of essential constitutional guarantees.' 2 N.Y.2d 355, 378, 161 N.Y.S.2d 7, 25, 141 N.E.2d 533, 546.

Our initial error in all this business (see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137) was our disregard of the basic principle that government can concern itself only with the actions of men, not with their opinions or beliefs. As Thomas Jefferson said in 1779:

' * *  * the opinions of men are not the object of civil      government, nor under its jurisdiction; *  *  * it is time      enough for the rightful purposes of civil government for its      officers to interfere when principles bread out into overt      acts against peace and good order.'

The fitness of a subway conductor for his job depends on his health, his promptness, his record for reliability, not on his politics or philosophy of life. The fitness of a teacher for her job turns on her devotion to that priesthood, her education, and her performance in the library, in the laboratory, and the classroom, not on her political beliefs. Anyone who plots against the government and moves in treasonable opposition to it can be punished. Governmentrightly can concern itself with the actions of people. But it's time we called a halt to government penalizing people for their beliefs. To repeat, individuals and private groups can make any judgments they want. But the realm of belief-as opposed to action-is one which the First Amendment places beyond the long arm of government.

A teacher who is organizing a Communist cell in a schoolhouse or a subway conductor who is preparing the transportation system for sabotage would plainly be unfit for his job. But we have no such evidence in the records before us. As my Brother BRENNAN points out, to jump to those conclusions on these records is to short-cut procedural due process.

In sum, we have here only a bare refusal to testify; and the Court holds that sufficient to show that these employees are unfit to hold their public posts. That makes qualification for public office turn solely on a matter of belief-a notion very much at war with the Bill of Rights.

When we make the belief of the citizen the basis of government action, we move toward the concept of total security. Yet total security is possible only in a totalitarian regime -the kind of system we profess to combat.