6 N.Y.2d 127 | NY | 1959
Lead Opinion
The individual respondents in the first of these eases are three teachers, a school clerk and a principal in the New York City school system who refused, when questioned by petitioner-appellant, Superintendent of Schools of the City of New York, to identify other school personnel as past or present members of the Communist party. All admitted past, but denied present membership in the Communist party themselves. For their refusal to answer the questions the Superintendent suspended them from their employment and instituted disciplinary action designed to terminate their terms.
The individual respondent in the second of these cases is an associate professor at Hunter College whom the petitioner-appellant, Board of Higher Education of the City of New York, dismissed — among other reasons — for similar refusal to answer questions about the “ past or present membership by municipal college staff members in the Communist Party or other subversive organizations.”
In essence, the Commissioner determined that the refusal of the defendant employees to submit to the interrogation concerning Communist affiliation, past or present, of other teachers furnishes no basis for disciplinary action by the petitioners.
The petitioners — the two New York City Boards of Education and the Superintendent of Schools of the City of New York— thereupon instituted the present article 78 proceedings to review and annul the Commissioner’s determination. The court at Special Term confirmed the Commissioner’s decision and dismissed the petitions. Pointing out that the Commissioner’s determination is, by section 310 of the Education Law, final and conclusive in matters relating to education “ unless arbitrary ”, the court declared that the “view of the commissioner in the arguable field of judgment and opinion cannot be said, as a matter of law, to lack rational basis ’ ’ and that his determination is not ‘ ‘ illegal, arbitrary or capricious.” The Appellate Division affirmed unanimously.
On this appeal the petitioners argue that the Commissioner’s decision prevents enforcement of the Feinberg Law and represents an illegal attempt in the guise of an administrative determination to nullify and repeal that statute and that the Commissioner’s determination does not involve educational policy affecting the school system but, instead, is concerned solely with upholding the refusal of individuals who, for legally
The Commissioner, on the other hand, asserts that his determination is one of educational policy; that all he determined was that a Board of Education may not suspend or dismiss a teacher who is unwilling to accuse another teacher of being or having been a Communist; that such determination was made in the exercise of judgment and is neither arbitrary nor capricious ; and that his ruling does not repeal or prevent enforcement of the Feinberg Law.
The initial question to be answered is the scope of the court’s review.
The Commissioner of Education is a constitutionally created officer. Section 4 of article V of the Constitution provides that: ‘ ‘ The head of the department of education shall be The Regents of the University of the State of New York, who shall appoint and at pleasure remove a commissioner of education to be the chief administrative officer of the department.” Section 305 of the Education Law, in turn, declares that the Commissioner of Education “ is the chief executive officer of the state system of education and of the board of regents. ’ ’ Section 310 of the Education Law, which deals with appeals to the Commissioner, reads, in pertinent part:
“ Any person conceiving himself aggrieved may appeal or petition to the commissioner of education who is hereby authorized and required to examine and decide - the same; and the commissioner of education may also institute such proceedings as are authorized under this article and his decision in such appeals, petitions or proceedings shall be final and conclusive, and not subject to question or review in any place or court whatever. Such appeal or petition may be made in consequence of any action: [emphasis supplied]. [There follows in 6 subdivisions a listing of various officials and bodies whose action may be reviewed and then the statute continues with the omnibus 7th subdivision.]
‘ ‘ 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.”
This court has said that the object of section 310 of the Educa
If the words of section 310 were to be read literally there could be no court review whatever of the Commissioner’s decisions on appeal, for the statute states that his decision “ shall be final and conclusive, and not subject to question or review in any place or court whatever.” However, our court has determined that the Legislature did not intend that the words are to be so read. Thus, we have said that ‘ ‘ decisions by the Commissioner of Education are final unless purely arbitrary ”. (Matter of Ross v. Wilson, 308 N. Y. 605, 608, emphasis supplied; Matter of Levitch v. Board of Educ., 243 N. Y. 373, 375.) The term “arbitrary”, standing by itself, would be quite sufficient to make it plain that only a narrow review of the Commissioner’s decisions is available in the courts. In the above-cited cases we undertook to emphasize the point by employing the phrase ‘‘purely arbitrary ”. With this rule as our guide we turn to a consideration of the issues to be resolved.
In his decision the Commissioner stated, inter alia, that the problem ‘ ‘ affects the administration of our entire education system ”; that there “ is near unanimity on the part of teachers throughout the State that indiscriminate use of this type of interrogation immediately engenders an atmosphere of suspicion and uneasiness in the schools and colleges ’ ’; that “ [t]rust which is necessary to keep morale at a high level is undermined”; that it “is notorious that part of the Communist philosophy encompasses falsehood as a means to an end ”; that the “ allegation by a member or former member of this organization standing alone could well be untrustworthy, yet it levels a deadly suspicion which is most difficult to disprove ”; that the “ literature of Communists who have recanted specifically sets forth allegations that their ilk have deliberately named persons who have had no connection with the organization for party reasons ”; that “ [e]ven if a person so named
On oral argument, the petitioners-appellants conceded that the respondent employees had a right to appeal to the Commissioner, pursuant to section 310, from the action taken against them by petitioners-appellants, but contended that on such appeal the Commissioner’s sole function was to determine whether the questions put to the respondent employees were relevant to a legal inquiry. We find no authority to support that. On the contrary, our court has indicated—and the language of the statute itself suggests — that section 310 was intended to confer a wide sweep of power upon the Commissioner (see Bullock v. Cooley, 225 N. Y. 566, 576-577, supra).
Petitioners-appellants contend that the Commissioner’s determination not to allow them to insist that respondent
The Commissioner also took a different view of the obligation of respondent Cohen, the principal. As to him the Commissioner said:
This we consider to be but further evidence of the fact that the Commissioner’s decision was a reasoned one rather than the product of arbitrariness or capriciousness.
Petitioners-appellants ’ major argument is that the Commissioner’s determination prevents enforcement of the Feinberg Law and represents an attempt to nullify and repeal that statute.
Under the provisions of the Feinberg Law (Education Law, § 3022) the Legislature directed the Board of Regents to adopt rules and regulations for the enforcement of all laws prohibiting subversives from obtaining or retaining employment
The argument has been made that the failure of the Legislature to enumerate in the Feinberg Law the methods to be employed in ferreting out subversives in the educational system compels the conclusion that the usual means of inquiry are authorized; that the petitioners-appellants are free, therefore, to utilize any of those means without interference by the Commissioner of Education; that the Legislature has not empowered the Commissioner to limit the methods of inquiry; and that the power to determine whether a particular type of questioning will do more harm than good is not within the scope of the Commissioner’s power since this power has not been conferred on him by any statute and has not been granted to him by the
As stated earlier, the Commissioner of Education has been made the chief administrative officer of the educational system of the State and, as such, has been invested with broad powers of review. He may review any “ official act or decision of any officer, school authorities, or meetings concerning any * * * matter under this chapter, or any * * * • act pertaining to common schools.” (Education Law, § 310, subd. 7.) The courts, in turn, may review the Commissioner’s determinations made on appeals taken to him pursuant to section 310. However, the Commissioner’s determinations may not be stricken down unless they be ‘1 purely arbitrary. ’ ’ The Commissioner on his review has not been so restricted. That is, unlike the courts, the Commissioner is empowered to substitute his judgment for that of the officer whose action he is reviewing. This is the plain import of section 310. All the courts may do is ascertain whether the Commissioner’s decision was purely arbitrary. To illustrate the significance of this in the present case: Several reasonable investigatory methods were available to the petitioners-appellants. They chose one. The Commissioner was free to overrule the use of the selected method without having to find that it was totally unreasonable ; he was at liberty to require the petitioners-appellants to resort to one of the other methods of investigation which he had reason to believe would be less injurious to the educational system. The courts, on the other hand, are not empowered to so substitute their judgment for that of the Commissioner and if Ms decision be not purely arbitrary it may not be overturned.
The question to be answered is not whether the Feinberg Law authorized the Commissioner to limit the methods of inquiry. At the time of the enactment of the Feinberg Law the Commissioner possessed the sweeping power to review action taken by educational officers, which has been described above. The question is whether the Feinberg Law withdrew from the Commissioner any of the power with which he had theretofore been invested. Certainly, the Feinberg Law does not expressly interfere with such power and it is familiar learning that repeals by implication are not favored by the courts. Generally speaking, a statute is not deemed to repeal
We would stress the fact that we are not passing upon the correctness of the determination of the Commissioner nor are we holding that members of the teaching profession in this State are exempt from citizenship responsibilities imposed not only on all other public servants, but on individuals in private life as well. We are merely discharging our judicial function of interpreting the legislative will. The lawmakers have the right and power to prescribe the Commissioner’s powers and to circumscribe our scope of review of his determinations.
The orders appealed from should be affirmed, with costs.
. Hughes was also dismissed for membership in the Communist party. He petitioned for a hearing on that issue pursuant to section 12-a of the Civil Service Law. Special Term dismissed his petition, but the Appellate Division reversed (Matter of Hughes v. Board of Higher Educ., 286 App. Div. 180) and we affirmed the Appellate Division (309 N. Y. 319), thus holding that Hughes was entitled to a trial in open court pursuant to section 12-a of the Civil Service Law on the question whether he had in fact and in good faith severed his relation or whether he had retained membership in the Communist party after its listing as subversive by the Board of Regents pursuant to the Feinberg Law (Education Law, § 3022). After the ensuing trial in open court judgment was entered in Hughes’ favor.
Dissenting Opinion
The Commissioner of Education does not have the power to approve a code of behavior which, by a conspiracy of silence, has frustrated the investigation into subversion in the school system in New York City — a school system which educates almost 1,000,000 children, and has a staff of over 40,000 teachers. The validity of the Commissioner’s decision according to his brief depends entirely on assumptions, inferences, speculations, polls, commentators’ opinions, editorial comment and bare conclusions. Facts and legal precedents are conspicuously absent.
The Commissioner’s ruling, which prevents the New York City Board of Education from discharging or suspending employees with Communist backgrounds who have refused, when questioned, to identify school personnel known by them to have been Communists, seems to have been influenced by arguments made by the respondent teachers and other interested parties. Recognizing the deficiencies of these argu
The respondent teachers rely on Watkins v. United States (354 U. S. 178 [labor leader]), Sweezy v. New Hampshire (354 U. S. 234 [university professor]), and Konigsberg v. State Bar (353 U. S. 252 [law student]) as authorities supporting their right to remain silent when questioned concerning the identity of persons whom they knew to be Communists.
The kind of ‘ ‘ right to silence ’ ’ adverted to in the cases cited by the respondent teachers is not involved in this case. The right to remain silent exists only where there is no corresponding duty to speak. Here the teachers assert not only their right to remain silent, but also assert that, despite their silence, they are to remain in public employment. Their position has been approved by the Commissioner. Administrative fiat has created a subsidy for those who assert the right to silence at the expense of the taxpayers of this State. The People who pay the piper, apparently, are no longer able to call the tune. Indeed, the piper, who refuses to play any tune at all, insists upon being paid nevertheless.
To date, however, the United States Supreme Court has not found that those partaking of the “ right to silence ” in subversion cases must be subsidized by the government or by agencies of the government. On the contrary, the Supreme Court has clearly decided that a teacher has to choose between his job and his proscribed associations. (Adler v. Board of Educ., 342 U. S. 485.) 11 By engaging in teaching in the public schools, petitioner did not give up his right to freedom of belief, speech or association. He did, however, undertake obligations of frankness, candor and cooperation in answering inquiries made of him by his employing Board examining into his fitness to serve it as a public school teacher.” (Beilan v. Board of Educ., 357 U. S. 399, 405; see, also, Matter of Lerner v. Casey, 2 N Y 2d 355, affd. 357 U. S. 468.) A person does not have a con
The right to silence, I have pointed out, does not exist where there is a duty to speak. The teachers here owe to the people of this State the duty to reveal their knowledge and information to duly constituted authorities. In New York, for some years, we have had a public policy that subversives were not to be appointed or retained in positions of public employment (Civil Service Law, § 12-a; Education Law, § 3022; Rules of Board of Regents, § 244, subd. 1, par. a; subd. 2; see Matter of Adler, 73 N. Y. St. Dept. Rep. 134, Commissioner of Educ. 195; Matter of Adler v. Wilson, 282 App. Div. 418, motion for leave to appeal denied 306 N. Y. 981). In New York City the local Board of Education has, by virtue of provisions of section 526 of the New York City Charter, the right to require any and all persons under its jurisdiction to make known to it all information within their knowledge respecting the conduct of any of its members and employees and to impose penalties for failure to disclose this information. The failure to discharge this duty casts serious reflection upon a person’s fitness to hold a position of responsibility as a teacher.
The Commissioner agrees that questions concerning a person’s knowledge of other individuals who had espoused communism are proper in the inquiry undertaken by the Board of Education. But he holds that the failure to answer these questions provides no ground for disciplinary action, and serves no basis for an inquiry into a teacher’s fitness to practice his profession. The issue in this case then is whether the Commissioner of Education can immunize former Communist teachers for penalties for contemptuous conduct in refusing to identify employees of the school system known to them to be or to have been Communists.
Prior to the Commissioner’s decision, 186 members of the school system were identified as Communists. One hundred and twenty-five of those persons so identified were separated from the school system. The remaining 61 who admitted former membership were retained in the employ of the board. Ninety-four Communists were removed from the employ of the Board of Higher Education. At the time of the Commissioner’s ruling there were 28 employees, including the 5 defendants here, admitted former Communists, who had refused to disclose the identity of other school employees whom they acknowledge had been members of the Communist party. The contention of the petitioner that these employees could name more than 500 employees of the board who had been members of the Communist party is unchallenged. There are, presently unknown, persons who might have been members of the Communist party, and have knowledge of other employees who had been or still are members. Thus there are and were many employees who were or are members of the Communist party cells in various schools who have not been touched by the board’s investigation. The employment, of course, of all such persons may be contrary to the provisions of the law (Civil Service Law, § 12-a; Education Law, § 3022) and the Rules of the Board of Regents (§ 244, subd. 1, par. a; subd. 2).
The preamble to the Peinberg Law (Education Law, § 3022) indicates legislative dissatisfaction as to the actions on the part of the educational authorities in removing subversives from positions in the educational system. (L. 1949, eh. 360, § 1.) The law itself authorized procedures better to achieve this end. But the Legislature had not indicated the methods to be employed by the local boards in ferreting out subversives from these highly sensitive areas.
By the Rules of the Board of Regents, the petitioner was authorized to “ inquire of prior employees and such other persons as may be in a position to furnish pertinent information ” as to subversion.
No argument is necessary to show that the administrative determination has effectively shielded from exposure a very large number of persons who are or have been Communists. The right to thus thwart a legislative-mandated investigation is derived, the Commissioner claims, from his power to determine educational policy. The institution of the method of inquiry adopted by the petitioner would wreck, he states, the morale of the school system because it would be an “ inquisition ” requiring teachers to be “ informers ” and would probably result in the defamation of innocent persons. Nevertheless, at Special Term, he stated that his decision authorized the board to conduct unlimited questioning of admitted former Communists concerning the identity of other present employees whom they knew to be party members (inquisition) and allowed those questioned to answer and identify those persons (informers), and permitted the board to use any information gained from the witnesses through such questioning.
It is clear, then, that the Commissioner made no determination in respect to educational or school policy for the protection of the school system, because he concedes, as he must (Education Law, § 3022; Rules of Board of Regents, § 244, subd. 1, par. a; subd. 2), that the board had the right to utilize the method of inquiry, but he forbids its enforcement only to the extent of upholding those who refuse to answer.
The decision, then, was concerned solely with protecting from discipline the individual defendants under investigation who because of their personal convictions refused to identify others. Such a decision is completely unrelated to educational policy
As the Commissioner lacks the power which he purports to exercise, we should set aside his action. (Matter of Ross v. Wilson, 308 N. Y. 605; Matter of Eaton v. Allen, 1 Misc 2d 496.)
But even assuming, arguendo, that the Commissioner’s decision thwarting a legislative-mandated inquiry into subversion in our public school system is based upon educational policy, this court should set it aside as purely arbitrary and capricious. (Matter of Levitch v. Board of Educ., 243 N. Y. 373, 375.) We must decide then whether precedent and reason support the Commissioner’s determination.
There can be no doubt that the means utilized by the New York City Board of Education—namely, the requiring a teacher or professor to reveal the names of those persons in the educational system whom he knows to be a member of a subversive organization—is entirely proper. As early in our common-law jurisprudence as 1612, Lord Bacon recognized the obligation of all citizens to facilitate judicial inquiry by disclosure, (Countess of Shrewsbury’s Case, 2 How. St. Tr. 769, 778, cited in Blair v. United States, 250 U. S. 273, 279.) The United States Supreme Court has upheld contempt citations where a person refused to disclose the names of others whom she knew to be Communists (Yates v. United States, 355 U, S. 66; cf. United States v. Costello, 198 F. 2d 200, cert, denied 344 U. S. 874). A newspaper woman was similarly detained under an order of contempt in refusing to disclose in a civil action the name of a person which would have assisted the court in its investigation. (Garland v. Torre, 259 F. 2d 545, cert, denied 358 U. S. 910.) Only recently this court has upheld
These cases clearly indicate that the Commissioner’s determination that the refusal to answer the questions posed can form no basis for disciplinary action is purely arbitrary. There may be, it is true, other and better ways of attaining the information required by the board, but if the board does not exceed the bounds of reasonableness—and clearly here it did not—it is an arbitrary act on the part of the Commissioner to proscribe disciplinary action for refusal to respond to this line of questioning. ‘ ‘ A witness, of course, cannot ‘ pick and choose ' the questions to which an answer will be given.” (Yates v. United States, 355 U. S. 66, 73, supra.)
The identification of several hundred employees in the New York City school system as Communists and former Communists as well as the uncontradicted estimate that there are more than 500 other employees in the system who are or have been members of the Communist party emphasizes the materiality and the importance of the evidence the Board of Education seeks to obtain. There is no evidence or authorization in the decided cases to support the generalization that the testimony of so-called “ informers ” is of little value. There is abundant evidence that such an assumption is contrary to fact. To date 125 school personnel identified as one-time Communists by former party members presently employed in the school system resigned or retired rather than submit to questioning or were removed. No employee so identified has ever contended that he was falsely accused of being a Communist or former Communist. Testimony of so-called ‘1 informers ” in conspiracy cases has been accepted by juries to convict and this court and the United States Supreme Court have repeatedly held that such testimony was an adequate basis for the conviction. (See People v. Luciano, 277 N. Y. 348 [1938], reargument denied 278 N. Y. 624 [1938], cert, denied 305 U. S. 620 [1938]; People v. Hines, 258 App. Div. 466 [1st Dept., 1940], mod. 284 N. Y. 93 [1940]; People v. Fay, 270 App. Div. 261 [1st Dept., 1945], affd. 296 N. Y. 510 [1946], affd. 332 U. S. 261 [1947]; People v. Gross, 279 App. Div. 930 [2d Dept., 1952],
The Commissioner has sustained dismissals of teachers in the past, on the basis of such information, and has recently upheld the dismissal of a professor who was identified by a colleague as a member of the Communist party. (Matter of Board of Higher Educ. v. Austin, Commissioner of Educ., No. 6603, May 13, 1959.)
The disproven speculations of the Commissioner illustrate how he, without any evidence or precedent, attempts to rule on matters far beyond the realm of educational policy.
The appellants’ brief shows that “ The record is also completely devoid of any proof that the Board has been guilty of ‘ indiscriminate ’ use of this method of inquiry.” The investigation and interrogation of these defendants and of all other persons under inquiry have at all times “ been conducted in private without public disclosure as to the substance of the information [furnished] or the identity of alleged subversive persons.” For example, each of the defendants was advised that the interviews were completely confidential and would be in no way publicized.
“All information” obtained during the investigations has at all times “ been carefully considered ” and evaluated “ with respect to credibility, weight and relevancy and no charges and specifications have [ever] been filed or prosecuted * * *
unless and until in the judgment of the Superintendent of Schools such charges and specifications were ” warranted by the facts.
Finally the assertions of alleged damage to the school system are squarely contradicted by the Commissioner’s position in limiting the obligation of the principal to identification of present members of the Communist party employed in his school. This position presents several questions. In the words of the appellant: “Is the report of a former Communist principal worthy of belief merely because it is prepared by a principal rather than a former communist teacher? * * * Why [is] a principal, once tainted %oith communism, * * *
The Commissioner’s opinion, as appellant proves, “contains an illogical application of the theory that possible injury to the school system justifies the prohibition of a legal and essential method of inquiry. Thus the Commissioner excuses teachers from their concededly legal duty to answer questions by asserting that damage to the school system might result. However, a principal is excused from only part of this duty and is required to name names within a defined area although the possible alleged injury to the system is the same.
“It is obvious that the duty of the Board to comply with the Legislative mandate could not be dependent upon the fortuitous circumstances and vagaries of school assignments instead of the duty of members of the teaching profession to cooperate with lawfully constituted authority. ’ ’
The distinction made between the teachers and the principal of a school in the Commissioner’s ruling is difficult to understand. The difficulty is compounded when we read the Commissioner’s ruling requiring a college professor to answer questions concerning statistical information on subversive organization—and makes his refusal to answer subject him to disciplinary action—but holds sacrosanct his refusal to answer questions concerning the names of persons whom he knew to be Communists.
Even if we were to assume that the discharge of the statutory duty may have some harmful effect, the Legislature must be deemed to have foreseen all of the consequences and concluded that the benefits outweigh the possible ill effects. This expression of policy is contained in the statement of findings accompanying the enactment of the Feinberg Law wherein it stated in part: ‘ ‘ The legislature further finds and declares that in order to protect the children in our state from such subversive influence it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist Party and its affilated organizations, from obtaining or retain
In Matter of Adler v. Wilson (282 App. Div. 418, 425, motion for leave to appeal denied 306 N. Y. 981), the court said in connection with the Board of Begents’ 1951 policy declaration: “ It states a policy but it purports to add nothing to powers of inquiry and investigation already resident in local school authorities.”
It is, therefore, apparent that the board had the right to adopt a legal method used and recognized as essential by all law enforcement agencies, and did not need any specific authorization from the Legislature or the Board of Begents.
Since the alleged reasons of the Commissioner are self-contradictory, purely speculative and contrary to the facts and decisional law, his conclusions lack a rational basis.
The obligation of teachers to co-operate fully with their employer in enforcing a public policy of this State should not be considered less than that of any other citizen but greater. Befusal to co-operate seriously reflects upon their ability and capacity to hold a position of trust and confidence. (See Matter of Lerner v. Casey, supra.)
Accordingly, the orders of the Appellate Division should be reversed, and the determinations of the Commissioner of Education be vacated.
Judges Desmond, Dye, Fuld, Froessel and Van Voorhis concur with Chief Judge Conway; Judge Btjrke dissents in an opinion.
Orders affirmed.