U.S. Supreme Court

Shelton v. Tucker,364U.S. 479 (1960)Shelton v. Tucker

No. 14

Argued November 7,1960

Decided December 12,1960*

364U.S. 479

APPEAL FROM THE UNITED STATESDISTRICT COURT

FOR THE EASTERN DISTRICT OFARKANSAS

Syllabus

An Arkansas statute requires every teacher, as a condition ofemployment in a state supported school or college, to file annuallyan affidavit listing without limitation every organization to whichhe has belonged or regularly contributed within the preceding fiveyears. Teachers in state supported schools and colleges are notcovered by a civil service system, they are hired on a year-to-yearbasis, and they have no job security beyond the end of each schoolyear. The contracts of the teachers here involved were not renewed,because they refused to file the required affidavits.

Held: The statute is invalid, because it deprivesteachers of their right of associational freedom protected by theDue Process Clause of the Fourteenth Amendment from invasion bystate action. Pp.364 U. S.480-490.

(a) There can be no doubt of the right of a State to investigatethe competence and fitness of those whom it hires to teach in itsschools. P.364 U. S.485.

(b) To compel a teacher to disclose his every associational tieis to impair his right of free association, a right closely alliedto freedom of speech and a right which, like free speech, lies atthe foundation of a free society. Pp.364 U. S.485-487.

(c) The unlimited and indiscriminate sweep of the statute hereinvolved and its comprehensive interference with associationalfreedom go far beyond what might be justified in the exercise ofthe State's legitimate inquiry into the fitness and competence ofits teachers. Pp.364 U. S.487-490.

174 F.Supp. 351 and 231 Ark. 641,331 S.W.2d701, reversed.

Page 364 U. S. 480

MR. JUSTICE STEWART delivered the opinion of the Court.

An Arkansas statute compels every teacher, as a condition ofemployment in a state-supported school or college, to file annuallyan affidavit listing without limitation every organization to whichhe has belonged or regularly contributed within the preceding fiveyears. At issue in these two cases is the validity of that statuteunder the Fourteenth Amendment to the Constitution. No. 14 is anappeal from the judgment of a three-judge Federal District Courtupholding the statute's validity,174 F.Supp. 351. No. 83 is here on writ of certiorari to the SupremeCourt of Arkansas, which also held the statute constitutionallyvalid. 231 Ark. 641,331 S.W.2d701.

The statute in question is Act 10 of the Second ExtraordinarySession of the Arkansas General Assembly of 1958. The provisions ofthe Act are summarized in the opinion of the District Court asfollows:

"Act 10 provides in substance that no person shall be employedor elected to employment as a superintendent, principal or teacherin any public school in Arkansas, or as an instructor, professor orteacher in any public institution of higher learning in that Stateuntil such person shall have submitted to the appropriate

Page 364 U. S. 481

hiring authority an affidavit listing all organizations to whichhe at the time belongs and to which he has belonged during the pastfive years, and also listing all organizations to which he at thetime is paying regular dues or is making regular contributions, orto which within the past five years he has paid such dues or madesuch contributions. The Act further provides, among other things,that any contract entered into with any person who has not filedthe prescribed affidavit shall be void; that no public moneys shallbe paid to such person as compensation for his services, and thatany such funds so paid may be recovered back either from the personreceiving such funds or from the board of trustees or othergoverning body making the payment. The filing of a false affidavitis denounced as perjury, punishable by a fine of not less than fivehundred nor more than one thousand dollars, and, in addition, theperson filing the false affidavit is to lose his teachinglicense."

174 F. Supp. 353-354. [Footnote1]

Page 364 U. S. 482

These provisions must be considered against the existing systemof teacher employment required by Arkansas law. Teachers there arehired on a year-to-year basis. They are not covered by a civilservice system, and they have no job security beyond the end ofeach school year. The closest approach to tenure is a statutoryprovision for the automatic renewal of a teacher's contract if heis not notified within ten days after the end of a school year thatthe contract has not been renewed. Ark.1947 Stat.Ann. § 80-1304(b)(1960);Wabbaseka School District No. 7 v. Johnson, 225Ark. 982,286 S.W.2d841.

The plaintiffs in the Federal District Court (appellants here)were B. T. Shelton, a teacher employed in the Little Rock PublicSchool System, suing for himself and others similarly situated,together with the Arkansas Teachers Association and its ExecutiveSecretary, suing for the benefit of members of the Association.Shelton had been

Page 364 U. S. 483

employed in the Little Rock Special School District fortwenty-five years. In the spring of 1959, he was notified that,before he could be employed for the 1959-1960 school year, he mustfile the affidavit required by Act 10, listing all hisorganizational connections over the previous five years. Hedeclined to file the affidavit, and his contract for the ensuingschool year was not renewed. At the trial, the evidence showed thathe was not a member of the Communist Party or of any organizationadvocating the overthrow of the Government by force, and that hewas a member of the National Association for the Advancement ofColored People. The court upheld Act 10, finding the information itrequired was "relevant," and relying on several decisions of thisCourt, particularlyGarner v. Board of Public Works of LosAngeles,341 U. S. 716;Adler v. Board of Education,342 U.S. 485;Beilan v.

Page 364 U. S. 484

Board of Education,357 U. S. 399, andLerner v. Casey,357 U. S. 468.[Footnote 2]

The plaintiffs in the state court proceedings (petitioners here)were Max Carr, an associate professor at the University ofArkansas, and Ernest T. Gephardt, a teacher at Central High Schoolin Little Rock, each suing for himself and others similarlysituated. Each refused to execute and file the affidavit requiredby Act 10. Carr executed an affirmation [Footnote 3] in which he listed his membership inprofessional organizations, denied ever having been a member of anysubversive organization, and offered to answer any questions whichthe University authorities might constitutionally ask touching uponhis qualifications as a teacher. Gephardt filed an affidavitstating that he had never belonged to a subversive organization,disclosing his membership in the Arkansas Education Association andthe American Legion, and also offering to answer any questionswhich the school authorities might constitutionally ask touchingupon his qualifications as a teacher. Both were advised that theirfailure to comply with the requirements of Act 10 would makeimpossible their reemployment as teachers for the following schoolyear. The Supreme Court of Arkansas upheld the constitutionality ofAct 10, on its face and as applied to the petitioners. 231 Ark.641,331 S.W.2d701.

IIt is urged here, as it was unsuccessfully urged throughout theproceedings in both the federal and state courts, that Act 10deprives teachers in Arkansas of their

Page 364 U. S. 485

rights to personal, associational, and academic liberty,protected by the Due Process Clause of the Fourteenth Amendmentfrom invasion by state action. In considering this contention, wedeal with two basic postulates.

First. There can be no doubt of the right of a State toinvestigate the competence and fitness of those whom it hires toteach in its schools, as this Court before now has had occasion torecognize.

"A teacher works in a sensitive area in a school room. There heshapes the attitude of young minds towards the society in whichthey live. In this, the state has a vital concern."

Adler v. Board of Education,342 U.S. 485,342 U. S. 493.There is

"no requirement in the Federal Constitution that a teacher'sclassroom conduct be the sole basis for determining his fitness.Fitness for teaching depends on a broad range of factors."

Beilan v. Board of Education,357 U.S. 399,357 U. S. 406.[Footnote 4]

This controversy is thus not of a pattern with such cases asNAACP v. Alabama,357 U. S. 449, andBates v. Little Rock,361 U. S. 516. Inthose cases, the Court held that there was no substantiallyrelevant correlation between the governmental interest asserted andthe State's effort to compel disclosure of the membership listsinvolved. Here, by contrast, there can be no question of therelevance of a State's inquiry into the fitness and competence ofits teachers. [Footnote 5]

Second. It is not disputed that to compel a teacher todisclose his every associational tie is to impair

Page 364 U. S. 486

that teacher's right of free association, a right closely alliedto freedom of speech and a right which, like free speech, lies atthe foundation of a free society.De Jonge v. Oregon,299 U. S. 353,299 U. S. 364;Bates v. Little Rock, supra, at361 U. S.2-5522-523. Such interference with personal freedom isconspicuously accented when the teacher serves at the absolute willof those to whom the disclosure must be made -- those who any yearcan terminate the teacher's employment without bringing charges,without notice, without a hearing, without affording an opportunityto explain.

The statute does not provide that the information it requires bekept confidential. Each school board is left free to deal with theinformation as it wishes. [Footnote6] The record contains evidence to indicate that fear of publicdisclosure is neither theoretical nor groundless. [Footnote 7] Even if there were no disclosureto the general public, the pressure upon a teacher to avoid anyties which might displease those who control his professionaldestiny would be constant and heavy. Public exposure, bringing withit the possibility of public pressures upon school boards todischarge teachers who belong to unpopular or minority

Page 364 U. S. 487

organizations, would simply operate to widen and aggravate theimpairment of constitutional liberty.

The vigilant protection of constitutional freedoms is nowheremore vital than in the community of American schools.

"By limiting the power of the States to interfere with freedomof speech and freedom of inquiry and freedom of association, theFourteenth Amendment protects all persons, no matter what theircalling. But, in view of the nature of the teacher's relation tothe effective exercise of the rights which are safeguarded by theBill of Rights and by the Fourteenth Amendment, inhibition offreedom of thought, and of action upon thought, in the case ofteachers brings the safeguards of those amendments vividly intooperation. Such unwarranted inhibition upon the free spirit ofteachers . . . has an unmistakable tendency to chill that free playof the spirit which all teachers ought especially to cultivate andpractice; it makes for caution and timidity in their associationsby potential teachers."

Wieman v. Updegraff,344 U. S. 183,344 U. S. 195(concurring opinion).

"Scholarship cannot flourish in an atmosphere of suspicion anddistrust. Teachers and students must always remain free to inquire,to study and to evaluate. . . ."

Sweezy v. New Hampshire,354 U.S. 234,354 U. S.250.

IIThe question to be decided here is not whether the State ofArkansas can ask certain of its teachers about all theirorganizational relationships. It is not whether the State can askall of its teachers about certain of their associational ties. Itis not whether teachers can be asked how many organizations theybelong to, or how much time they spend in organizational activity.The question is whether the State can ask every one of its teachersto disclose every single organization with which he has

Page 364 U. S. 488

been associated over a five-year period. The scope of theinquiry required by Act 10 is completely unlimited. The statuterequires a teacher to reveal the church to which he belongs, or towhich he has given financial support. It requires him to disclosehis political party, and every political organization to which hemay have contributed over a five-year period. It requires him tolist, without number, every conceivable kind of associational tie-- social, professional, political, avocational, or religious. Manysuch relationships could have no possible bearing upon theteacher's occupational competence or fitness.

In a series of decisions, this Court has held that, even thoughthe governmental purpose be legitimate and substantial, thatpurpose cannot be pursued by means that broadly stifle fundamentalpersonal liberties when the end can be more narrowly achieved.[Footnote 8] The breadth oflegislative abridgment must be viewed in the light of less drasticmeans for achieving the same basic purpose. [Footnote 9]

InLovell v. Griffin,303 U. S. 444, theCourt invalidated an ordinance prohibiting all distribution ofliterature at any time or place in Griffin, Georgia, without alicense, pointing out that so broad an interference was unnecessaryto accomplish legitimate municipal aims. In

Page 364 U. S. 489

Schneider v. State,308 U. S. 147, theCourt dealt with ordinances of four different municipalities whicheither banned or imposed prior restraints upon the distribution ofhandbills. In holding the ordinances invalid, the Court noted that,where legislative abridgment of "fundamental personal rights andliberties" is asserted,

"the courts should be astute to examine the effect of thechallenged legislation. Mere legislative preferences or beliefsrespecting matters of public convenience may well supportregulation directed at other personal activities, but beinsufficient to justify such as diminishes the exercise of rightsso vital to the maintenance of democratic institutions."

308 U.S. at308 U. S. 161.InCantwell v. Connecticut,310 U.S. 296, the Court said that

"[c]onduct remains subject to regulation for the protection ofsociety,' but pointed out that, in each case, 'the power toregulate must be so exercised as not, in attaining a permissibleend, unduly to infringe the protected freedom."

310 U.S. at310 U. S. 304.Illustrations of the same constitutional principle are to be foundin many other decisions of the Court, among themMartin v.Struthers,319 U. S. 141;Saia v. New York,334 U. S. 558, andKunz v. New York,340 U. S. 290.

As recently as last Term, we held invalid an ordinanceprohibiting the distribution of handbills because the breadth ofits application went far beyond what was necessary to achieve alegitimate governmental purpose.Talley v. California,362 U. S. 60. Inthat case, the Court noted that it had been

"urged that this ordinance is aimed at providing a way toidentify those responsible for fraud, false advertising and libel.Yet the ordinance is in no manner so limited. . . . Therefore we donot pass on the validity of an ordinance limited to prevent theseor any other supposed evils. This ordinance simply bars allhandbills under all circumstances anywhere that do not have thenames and addresses printed on them in the place the ordinancerequires."

362 U.S. at362 U. S.64.

Page 364 U. S. 490

The unlimited and indiscriminate sweep of the statute now beforeus brings it within the ban of our prior cases. The statute'scomprehensive interference with associational freedom goes farbeyond what might be justified in the exercise of the State'slegitimate inquiry into the fitness and competency of its teachers.The judgments in both cases must be reversed.

It is so ordered.

* Together with No. 83,Carr et al. v. Young et al., oncertiorari to the Supreme Court of Arkansas.

[Footnote 1]

The statute is in seven sections. Section 1 provides:

"It is hereby declared that the purpose of this act is toprovide assistance in the administration and financing of thepublic schools of Arkansas, and institutions of higher learningsupported wholly or in part by public funds, and it is herebydetermined that it will be beneficial to the public schools andinstitutions of higher learning and the State of Arkansas, ifcertain affidavits of membership are required as hereinafterprovided."

Section 2 provides:

"No superintendent, principal, or teacher shall be employed orelected in any elementary or secondary school by the districtoperating such school, and no instructor, professor, or otherteacher shall be employed or elected in any institution of higherlearning, or other educational institution supported wholly or inpart by public funds, by the trustees or governing authoritythereof, until, as a condition precedent to such employment, suchsuperintendent, principal, teacher, instructor or professor shallhave filed with such board of trustees or governing authority anaffidavit as to the names and addresses of all incorporated and/orunincorporated associations and organizations that suchsuperintendent, principal, teacher, instructor or professor is orwithin the past five years has been a member of, or to whichorganization or association such superintendent, principal,teacher, instructor, professor, or other teacher is presentlypaying, or within the past five years has paid regular dues, or towhich the same is making or within the past five years has maderegular contributions."

Section 3 sets out the form of affidavit to be used.

Section 4 provides:

"Any contract entered into by any board of any school district,board of trustees of any institution of higher learning, or othereducational institution supported wholly or in part by publicfunds, or by any governing authority thereof, with anysuperintendent, principal, teacher, instructor, professor, or otherinstructional personnel, who shall not have filed the affidavitrequired in Section 2 hereof prior to the employment or election ofsuch person and prior to the making of such contracts, shall benull and void and no funds shall be paid under said contract tosuch superintendent, principal, teacher, instructor, professor, orother instructional personnel; any funds so paid under saidcontract to such superintendent, principal, teacher, instructor,professor, or other instructional personnel, may be recovered fromthe person receiving the same and/or from the board of trustees orother governing authority by suit filed in the circuit court of thecounty in which such contract was made, and any judgment entered bysuch court in such cause of action shall be a personal judgmentagainst the defendant therein and upon the official bonds made bysuch defendants, if any such bonds be in existence."

Section 5 provides that a teacher filing a false affidavit shallbe guilty of perjury, punishable by a fine, and shall forfeit hislicense to teach in any school or other institution of learningsupported wholly or in part by public funds.

Section 6 is a separability provision.

Section 7 is an emergency clause, reading in part asfollows:

"It is hereby determined that the decisions of the United StatesSupreme Court in the school segregation cases require solution of agreat variety of local public school problems of considerablecomplexity immediately and which involve the health, safety andgeneral welfare of the people of the State of Arkansas, and thatthe purpose of this act is to assist in the solution of theseproblems and to provide for the more efficient administration ofpublic education."

[Footnote 2]

In the same proceeding, the court held constitutionally invalidan Arkansas statute making it unlawful for any member of theNational Association for the Advancement of Colored People to beemployed by the State of Arkansas or any of its subdivisions.174 F.Supp. 351.

[Footnote 3]

The affirmation recited that Carr was "conscientiously opposedto taking an oath or swearing in any form. . . ."

[Footnote 4]

The actual holdings inAdler andBeilan,involving the validity of teachers' discharges, are not relevant tothe present case.

[Footnote 5]

The declared purpose of Act 10 is "to provide assistance in theadministration and financing of the public schools. . . ." Thedeclared justification for the emergency clause is "to assist inthe solution" of problems raised by "the decisions of the UnitedStates Supreme Court in the school segregation cases."Seenote 1 But neither the breadthand generality of the declared purpose nor the possible irrelevanceof the emergency provision detracts from the existence of an actualrelevant state interest in the inquiry.

[Footnote 6]

The record contains an opinion of the State Attorney Generalthat

"it is an administrative determination, to be made by therespective Boards, as to the disclosure of information contained inthe affidavits."

The Supreme Court of Arkansas has held only that "the affidavitsneed not be opened to public inspection. . . ." 231 Ark.641, 646,331 S.W.2d701, 704. (Emphasis added.)

[Footnote 7]

In the state court proceedings, a witness who was a member ofthe Capital Citizens Council testified that his group intended togain access to some of the Act 10 affidavits with a view toeliminating from the school system persons who supportedorganizations unpopular with the group. Among such organizations,he named the American Civil Liberties Union, the Urban League, theAmerican Association of University Professors, and the Women'sEmergency Committee to Open Our Schools.

[Footnote 8]

In other areas, involving different constitutional issues, moreadministrative leeway has been thought allowable in the interest ofincreased efficiency in accomplishing a clearly constitutionalcentral purpose.See Purity Extract Co. v. Lynch,226 U. S. 192;Jacob Ruppert v. Caffey,251 U. S. 264;Schlesinger v. Wisconsin,270 U.S. 230,270 U. S. 241(dissenting opinion);Queenside Hills Co. v. Saxl,328 U. S. 80,328 U. S. 83.But cf. Dean Milk Co. v. Madison,340 U.S. 349.

[Footnote 9]

See Freund, Competing Freedoms in AmericanConstitutional Law, 13 U. of Chicago Conference Series 26, 32-33;Richardson, Freedom of Expression and the Function of Courts, 65Harv.L.Rev. 1, 6, 23-24; Comment, Legislative Inquiry intoPolitical Activity: First Amendment Immunity From CommitteeInterrogation, 65 Yale L.J. 1159, 1173-1175.

MR. JUSTICE FRANKFURTER, dissenting.

As one who has strong views against crude intrusions by thestate into the atmosphere of creative freedom in which alone thespirit and mind of a teacher can fruitfully function, I may finddispleasure with the Arkansas legislation now under review. But, inmaintaining the distinction between private views andconstitutional restrictions, I am constrained to find that it doesnot exceed the permissible range of state action limited by theFourteenth Amendment. By way of emphasis, I therefore add a fewwords to the dissent of MR. JUSTICE HARLAN, in which I concur.

It is essential, at the outset, to establish what is notinvolved in this litigation:

(1) As the Court recognizes, this is not a case where, as inNAACP v.Alabama,357 U. S. 449, andBates v. Little Rock,361 U. S. 516, aState, asserting the power to compel disclosure of organizationalaffiliations, can show no rational relation between disclosure anda governmental interest justifying it. Those cases are relevanthere only because of their recognition that an interest in privacy,in nondisclosure, may, under appropriate circumstances, claimconstitutional protection. The question here is whether thatinterest is overborne by a countervailing public interest. To thisconcrete, limited question -- whether the State's interest inknowing the nature

Page 364 U. S. 491

of the organizational activities of teachers employed by it orby institutions which it supports, as a basis for appraising thefitness of those teachers for the positions which they hold,outweighs the interest recognized inNAACP andBates -- those earlier decisions themselves give noanswer.

(2) The Court's holding that the Arkansas statute isunconstitutional does not, apparently, rest upon the threat thatthe information which it requires of teachers will be revealed tothe public. In view of the opinion of the Supreme Court ofArkansas, decision here could not, I believe, turn on a claim thatthe teachers' affidavits will not remain confidential. That courthas expressly said that,

"[i]nasmuch as the validity of the act depends upon its beingconstrued as abona fide legislative effort to provideschool boards with needed information, it necessarily follows thatthe affidavits need not be opened to public inspection, for thepermissible purpose of the statute is to enlighten the school boardalone."

231 Ark. 641, 646,331 S.W.2d701, 704. If the validity of the statute depended on thismatter, the pronouncement of the State's highest judicial organwould have to be read as establishing -- the earlier view of theState Attorney General notwithstanding -- that the statute does notauthorize the making public of the affidavits. Even were theArkansas court's language far more ambiguous than it is, it wouldbe our duty so to understand its opinion, in accordance with theprinciple that, "[s]o far as statutes fairly may be construed insuch a way as to avoid doubtful constitutional questions, theyshould be so construed."Fox v. Washington,236 U.S. 273,236 U. S.277.

(3) This is not a case in whichLovell v. Griffin,303 U. S. 444;Cantwell v. Connecticut,310 U. S. 296;Saia v. New York,334 U. S. 558, andKunz v. New York,340 U. S. 290,call for condemnation of the "breadth" of the statute. Thosedecisions struck down licensing laws

Page 364 U. S. 492

which vested in administrative officials a power of censorshipover communications not confined within standards designed to curbthe dangers of arbitrary or discriminatory official action. The"breadth" with which the cases were concerned was the breadth ofunrestricted discretion left to a censor, which permitted him tomake his own subjective opinions the practically unreviewablemeasure of permissible speech. [Footnote 2/1] Nor is this a case of the nature ofThornhill v. Alabama,310 U. S. 88, andHerndon v. Lowry,301 U. S. 242,[Footnote 2/2] involving penalstatutes which the Court found impermissibly "broad" in quiteanother sense. Prohibiting, indiscriminately, activity within andwithout the sphere of the Fourteenth Amendment's protection of freeexpression, those statutes had the double vice of deterring theexercise of constitutional freedoms by making the uncertain line ofthe Amendment's application determinative of criminality, and ofprescribing indefinite standards of guilt, thereby allowing thepotential vagaries and prejudices of juries, effectively insulatedagainst control by reviewing courts, the power to intrude upon theprotected sphere. The statute challenged in the present casesinvolves neither administrative discretion to censor nor vague,overreaching tests of criminal responsibility.

Page 364 U. S. 493

Where state assertions of authority are attacked asimpermissibly restrictive upon thought, expression, or association,the existencevel non of other possible less restrictivemeans of achieving the object which the State seeks is, of course,a constitutionally relevant consideration. This is not because somenovel, particular rule of law obtains in cases of this kind.Whenever the reasonableness and fairness of a measure are at issue-- as they are in every case in which this Court must apply thestandards of reason and fairness, with the appropriate scope to begiven those concepts, in enforcing the Due Process Clause of theFourteenth Amendment as a limitation upon state action -- theavailability or unavailability of alternative methods of proceedingis germane. Thus, a State may not prohibit the distribution ofliterature on its cities' streets as a means of preventinglittering when the same end might be achieved with only slightlygreater inconvenience by applying the sanctions of the penal lawnot to the pamphleteer who distributes the paper, but to therecipient who crumples it and throws it away.Hague v.C.I.O.,307 U. S. 496;Schneider v. State,308 U. S. 147;Jamison v. Texas,318 U. S. 413. Normay a State protect its population from the dangers and incitementsof salacious books by restricting the reading matter of adults tothat which would be harmless to the susceptible mind of a child.Butler v. Michigan,352 U. S. 380.And see De Jonge v. Oregon,299 U.S. 353;Talley v. California,362 U. S.60. [Footnote 2/3] Butthe consideration

Page 364 U. S. 494

of feasible alternative modes of regulation in these cases didnot imply that the Court might substitute its own choice amongalternatives for that of a state legislature, or that the Stateswere to be restricted to the "narrowest" workable means ofaccomplishing an end.See Prince v. Massachusetts,321 U. S. 158,321 U. S.169-170. Consideration of alternatives may focus theprecise exercise of state legislative authority which is tested inthis Court by the standard of reasonableness, but it does not alteror displace that standard. The issue remains whether, in light ofthe particular kind of restriction upon individual liberty which aregulation entails, it is reasonable for a legislature to choosethat form of regulation, rather than others less restrictive. Tothat determination, the range of judgment easily open to alegislature in considering the relative degrees of efficiency ofalternative means in achieving the end it seeks is pertinent.

In the present case, the Court strikes down an Arkansas statuterequiring that teachers disclose to school officials all of theirorganizational relationships on the ground that "Many suchrelationships could have no possible bearing upon the teacher'soccupational competence or fitness." Granted that a given teacher'smembership in the First Street Congregation is, standing alone, oflittle relevance to what may rightly be expected of a teacher, isthat membership equally irrelevant when it is discovered that theteacher is, in fact, a member of the First Street Congregation andthe Second Street Congregation and the Third Street Congregationand the 4-H Club and the 3-H Club and half a dozen other groups?Presumably, a teacher may have so many divers associations, so manydivers commitments, that they consume his time and energy andinterest at the expense of his work or even of his professionaldedication. Unlike wholly individual interests, organizationalconnections -- because they involve obligations undertaken withrelation to other persons

Page 364 U. S. 495

-- may become inescapably demanding and distracting. Surely, aschool board is entitled to inquire whether any of its teachers hasplaced himself, or is placing himself, in a condition where hiswork may suffer. Of course, the State might ask: "To how manyorganizations do you belong?" or "How much time do you expend atorganizational activity?" But the answer to such questions couldreasonably be regarded by a state legislature as insufficient, bothbecause the veracity of the answer is more difficult to test incases where doubts as to veracity may arise than in the case of theanswers required by the Arkansas statute, and because an estimateof time presently spent in organizational activity reveals nothingas to the quality and nature of that activity, upon the basis ofwhich, necessarily, judgment or prophesy of the extent of futureinvolvement must be based. A teacher's answers to the questionswhich Arkansas asks, moreover, may serve the purpose of makingknown to school authorities persons who come into contact with theteacher in all of the phases of his activity in the community, andwho can be questioned, if need be, concerning the teacher's conductin matters which this Court can certainly not now say are lackingin any pertinence to professional fitness. It is difficult tounderstand how these particular ends could be achieved by asking"certain of [the State's] teachers about all their organizationalrelationships," or "all of its teachers about certain of theirassociational ties," or all of its teachers how many associationscurrently involve them, or during how many hours, and difficult,therefore, to appreciate why the Court deems unreasonable andforbids what Arkansas does ask.

If I dissent from the Court's disposition in these cases, it isnot that I put a low value on academic freedom.See Wieman v.Updegraff,344 U. S. 183,344 U. S. 194(concurring opinion);Sweezy v. New Hampshire,354 U. S. 234,354 U. S. 255(concurring opinion). It is because that very freedom,

Page 364 U. S. 496

in its most creative reaches, is dependent in no small part uponthe careful and discriminating selection of teachers. This processof selection is an intricate affair, a matter of fine judgment,and, if it is to be informed, it must be based upon a comprehensiverange of information. I am unable to say, on the face of thisstatute, that Arkansas could not reasonably find that theinformation which the statute requires -- and which may not beotherwise acquired than by asking the question which it asks -- isgermane to that selection. Nor, on this record, can I attribute tothe State a purpose to employ the enactment as a device for theaccomplishment of what is constitutionally forbidden. Of course, ifthe information gathered by the required affidavits is used tofurther a scheme of terminating the employment of teachers solelybecause of their membership in unpopular organizations, that usewill run afoul of the Fourteenth Amendment. It will be time enough,if such use is made, to hold the application of the statuteunconstitutional.See Yick Wo v. Hopkins,118 U.S. 356. Because I do not find that the disclosure ofteachers' associations to their school boards is, without more,such a restriction upon their liberty, or upon that of thecommunity, as to overbalance the State's interest in asking thequestion, I would affirm the judgments below.

I am authorized to say that MR. JUSTICE CLARK, MR. JUSTICEHARLAN and MR. JUSTICE WHITAKER agree with this opinion.

[Footnote 2/1]

See also Hague v. C.I.O.,307 U.S. 496;Schneider v. State,308 U.S. 147 (the Irvington ordinance);Largent v.Texas,318 U. S. 418;Jones v. Opelika,319 U. S. 103,vacating316 U. S. 584 (theOpelika ordinance);Niemotko v. Maryland,340 U.S. 268;Joseph Burstyn, Inc. v. Wilson,343 U. S. 495;Gellin v. Texas,343 U. S. 960;Superior Films, Inc. v. Department of Education,346 U. S. 587;Staub v. Baxley,355 U. S. 313;cf. Marsh v. Alabama,326 U. S. 501;Tucker v. Texas,326 U. S. 517. Thecommon law count in theCantwell case involvedconsiderations similar to those which were determinative of thedecisions cited in text and note, at364U.S. 479fn2/2|>note 2,infra.

[Footnote 2/2]

See also Stromberg v. California,283 U.S. 359;Winters v. New York,333 U.S. 507.

[Footnote 2/3]

Language characterizing state statutes as overly broad hassometimes been found in opinions where it was unnecessary to theresult, and merely meant to express the idea that whatever stateinterest was there asserted as underlying a regulation wasinsufficient to justify the regulation's application to particularcircumstances fairly within the Fourteenth Amendment's protection.Compare Thomas v. Collins,323 U.S. 516,with Fiske v. Kansas,274 U.S. 380.Compare Martin v. Struthers,319 U. S. 141,with Breard v. Alexandria,341 U.S. 622.

MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, MR. JUSTICECLARK and MR. JUSTICE WHITAKER join, dissenting.

Of course, this decision has a natural tendency to enlistsupport, involving as it does an unusual statute that touchesconstitutional rights whose protection in the context of the racialsituation in various parts of the country

Page 364 U. S. 497

demands the unremitting vigilance of the courts. Yet that verycircumstance also serves to remind of the restraints that attendconstitutional adjudication. It must be emphasized that neither ofthese cases actually presents an issue of racial discrimination.The statute, on its face, applies to all Arkansas teachers,irrespective of race, and there is no showing that it has beendiscriminatorily administered.

The issue is whether, consistently with the FourteenthAmendment, a State may require teachers in its public schools orcolleges to disclose, as a condition precedent to their initial orcontinued employment, all organizations to which they havebelonged, paid dues, or contributed within the past five years.Since I believe that such a requirement cannot be said totransgress the constitutional limits of a State's concededauthority to determine the qualifications of those serving it asteachers, I am bound to consider that Arkansas had the right topass the statute in question, and therefore conceive it my duty todissent.

The legal framework in which the issue must be judged is clear.The rights of free speech and association embodied in the "liberty"assured against state action by the Fourteenth Amendment (seeDe Jonge v. Oregon,299 U. S. 353,299 U. S. 364;Gitlow v. New York,268 U. S. 652,268 U. S. 672,dissenting opinion of Holmes, J.) are not absolute.Near v.Minnesota,283 U. S. 697,283 U. S. 708;Whitney v. California,274 U. S. 357,274 U. S. 373(concurring opinion of Brandeis, J.). Where official action isclaimed to invade these rights, the controlling inquiry is whethersuch action is justifiable on the basis of a superior governmentalinterest to which such individual rights must yield. When theaction complained of pertains to the realm of investigation, ourinquiry has a double aspect: first, whether the investigationrelates to a legitimate governmental purpose; second, whether,judged in the light of that purpose, the questioned

Page 364 U. S. 498

action has substantial relevance thereto.See Barenblatt v.United States,360 U. S. 109;Uphaus v. Wyman,360 U. S. 72.

In the two cases at hand, I think both factors are satisfied. Itis surely indisputable that a State has the right to choose itsteachers on the basis of fitness. And I think it equally clear, asthe Court appears to recognize, that information about a teacher'sassociations may be useful to school authorities in determining themoral, professional, and social qualifications of the teacher, aswell as in determining the type of service for which he will bebest suited in the educational system.See Adler v. Board ofEducation,342 U. S. 485;Beilan v. Board of Public Education,357 U.S. 399;see also Slochower v. Board ofEducation,350 U. S. 551.Furthermore, I take the Court to acknowledge that, agreeably to ourprevious decisions, the State may enquire into associations to theextent that the resulting information may be in aid of thatlegitimate purpose. These cases therefore do not present asituation such as we had inNAACP v. Alabama,357 U.S. 449, andBates v. Little Rock,361 U.S. 516, where the required disclosure bears nosubstantial relevance to a legitimate state interest.

Despite these considerations, this statute is stricken downbecause, in the Court's view, it is too broad, because it asks morethan may be necessary to effectuate the State's legitimateinterest. Such a statute, it is said, cannot justify the inhibitionon freedom of association which so blanket an inquiry may entail.Cf. NAACP v. Alabama, supra; Bates v. Little Rock,supra.

I am unable to subscribe to this view, because I believe itimpossible to determinea priori the place where the lineshould be drawn between what would be permissible inquiry andoverbroad inquiry in a situation like this. Certainly the Courtdoes not point that place out. There can be little doubt that muchof the associational information

Page 364 U. S. 499

called for by the statute will be of little or no use whateverto the school authorities, but I do not understand how thoseauthorities can be expected to fix in advance the terms of theirenquiry so that it will yield only relevant information.

I do not mean to say that alternatives such as an enquirylimited to the names of organizations of whose character the Stateis presently aware, or to a class of organizations defined by theirpurposes, would not be more consonant with a decent respect for theprivacy of the teacher, nor that such alternatives would be utterlyunworkable. I do see, however, that these alternatives suffer fromdeficiencies so obvious where a State is bent upon discoveringeverything which would be relevant to its proper purposes, that Icannot say that it must, as a matter of constitutional compulsion,adopt some such means instead of those which have been chosenhere.

Finally, I need hardly say that, if it turns out that thisstatute is abused, either by an unwarranted publicizing of therequired associational disclosures or otherwise, we would have adifferent kind of case than those presently before us.SeeLassiter v. Northampton Elections Board,360 U. S.45,360 U. S. 53-54.All that is now here is the validity of the statute on its face,and I am unable to agree that, in this posture of things, theenactment can be said to be unconstitutional.

I would affirm in both cases.