Slochower v. Board of Higher Education of the City of New York/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I dissent because I think the Court has misconceived the nature of § 903 as construed and applied by the New York Court of Appeals, and has unduly circumscribed the power of the State to ensure the qualifications of its teachers.

As I understand Mr. Justice Clark's opinion, the Court regards § 903 as raising some sort of presumption of guilt from Dr. Slochower's claim of privilege. That is not the way the Court of Appeals construed the statute. On the contrary, that Court said: 'we do not presume, of course, that these petitioners (one of whom was Dr. Slochower) by their action have shown cause to be discharged under the Feinberg Law, L.1949, ch. 360 since no inference of membership in the Communist party may be drawn from the assertion of one's privilege against self incrimination.' Since § 903 is inoperative if even incriminating answers are given, it is apparent that it is the exercise of the privilege itself which is the basis for the discharge, quite apart from any inference of guilt. Thus the Court of Appeals could say that 'The assertion of the privilege against self incrimination is equivalent to a resignation'. It is also clear that the Board of Education's discharge of Dr. Slochower was on this same premise. The question this case presents, therefore, is not whether any inferences can constitutionally be drawn from a claim of privilege, but whether a State violates due process when it makes a claim of privilege grounds for discharge.

In effect, what New York has done is to say that it will not employ teachers who refuse to cooperate with public authorities when asked questions relating to official conduct. Does such a statute bear a reasonable relation to New York's interest in ensuring the qualifications of its teachers? The majority seems to decide that it does not. This Court has already held, however, that a State may properly make knowing membership in an organization dedicated to the overthrow of the Government by force a ground for disqualification from public school teaching. Adler v. Board of Education, of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. A requirement that public school teachers shall furnish information as to their past or present membership in the Communist Party is a relevant step in the implementation of such a state policy, and a teacher may be discharged for refusing to comply with that requirement. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. Moreover, I think that a State may justifiably consider that teachers who refuse to answer questions concerning their official conduct are no longer qualified for public school teaching, on the ground that their refusal to answer jeopardizes the confidence that the public should have in its school system. On either view of the statute, I think Dr. Slochower's discharge did not violate due process.

It makes no difference that the question which Dr. Slochower refused to answer was put to him by a federal rather than a state body. The authority of the subcommittee to ask the question is not controverted. While as an original matter I would be doubtful whether § 903 was intended to apply to federal investigations, the Court of Appeals has ruled otherwise, and its interpretation is binding on us. Dr. Slochower cannot discriminate between forums in deciding whether or not to answer a proper and relevant question, if the State requires him to answer before every lawfully constituted body. Here, the information sought to be elicited from Dr. Slochower could have been considered by state authorities in reviewing Dr. Slochower's qualifications, and the effect of his claim of privilege on the public confidence in its school system was at least as great as it would have been had his refusal to answer been before a state legislative committee.

There is some evidence that Dr. Slochower had already answered, before a state committee, the same question which he refused to answer before the congressional subcommittee. Even assuming that New York already had the information, I cannot see how that would prevent New York from constitutionally applying § 903 to this claim of privilege. Apart from other considerations, who can tell whether Dr. Slochower would have answered the question the same way as he had before?

On this record I would affirm the decision of the Court of Appeals. A different question would be presented under the Privileges and Immunities Clause of the Fourteenth Amendment. But that question was not raised below, and is therefore not open here. Dewey v. City of Des Moines, 173 U.S. 193, 19 S.Ct. 379, 43 L.Ed. 665.