Faculty & Alumni: Assessment 2

TRENTON—The American Civil Liberties Union will appeal to the United States Supreme Court the decision of the State Supreme Court yesterday upholding the constitutionality of a 1949 state law requiring all school teachers in schools supported in whole or in part by public funds to take the so called anti-Communist oath.

Emil Oxfeld, New Jersey counsel for the ACLU, said he would base the appeal on the grounds that the law violates the U.S. Constitution; that it was passed without public hearing and that there has been no legislative finding of danger of subversion in New Jersey public schools. Oxfeld said he would confer with ACLU officials today or tomorrow to map the course of the appeal.

In the unanimous opinion delivered by Justice Heher, the state court upheld the dismissal of George B. Thorp of Ridgefield, a mechanical and aeronautical engineering teacher at Newark College of Engineering.

Dismissed by Board

Thorp was dismissed by the board of trustees of Schools for Industrial Education of Newark after he refused to take the oath on the ground that his employment in a public supported school mad him a public officer and the 1949 Tumulty-Mehorter Law was thus an infringement upon the oath prescribed for public officers by the State Constitution of 1947. His dismissal was upheld by the State Commissioner of Education and the State Board of Education.

Thorp appealed his dismissal to the Appellate Division, but the Supreme Court certified the case directly to itself. Oxfeld represented Thorp in the appeal.

The court ruled that Thorp was not a public officer because he did not exercise governmental authority. The tribunal added that Thorp was employed on a contractual basis by the board of trustees and, therefore, subject to legislative action regarding such contracts.

No Infringement

The court held that fundamental civil liberties are not violated by the oath, which requires a teacher to swear or affirm that he does not believe in or advocate the use of force or unconstitutional means to overthrow the government of the United States or of an individual states, and that he is not a member of the organization, group or party which advocates any of these means to overthrow the government.

The Tumulty-Mehorter Act, a companion law which required a non-Communist oath from candidates for elective public office, had been set aside by the court as a contrary to the general qualification required by the Constitution for candidates.

Court's Reasoning

Taking up the question of the First Amendment of the Federal Constitution which guarantees a person's right to freedom of opinion or belief, the court said: "But the fundamental civil liberties here involved are not absolute. The particular guarantee of freedom of thought and opinion by the First Amendment is not free of all qualifications. Government has the inherent right of self-protection against the forces that would accomplish its overthrow by violence. It is of the very nature of the social compact that the individual freedoms at issue here are subject to reasonable restraint in the service of an interest deemed essential to the life of the community."

"Orderly Processes"

Heher said it was true our government had its genesis in revolution, but it was also true that changes in our government "shall be accompanied by orderly and lawful processes."

Heher said "It goes without saying that anarchic and kindred methods are alien to the spirit of our institutions. However, natural law may justify a revolt against tyranny, our democratic society is grounded upon the principle of liberty and order, and the preservations of our free institutions and the governmental structure that sustains them is a primary responsibility of government."

Heher said that the 1949 oath "is but an extension and elaboration of the traditional oath of allegiance in matters considered by the Legislature vital to the essential common security."

Purpose of the Oath

The purpose of the oath, he said, is not to probe the mind of the teacher for the punishment of unorthodox beliefs, but rather to determine the teacher's qualifications for the instruction of youth in the public schools. He said "The test is largely subjective to forestall hostile action in an area deemed vital to the community***the aim is not to stifle beliefs as such but to disqualify for teaching one who, however capacitated otherwise, believes in the objective of overthrow of the government, Federal or state, by force or violence or otherwise unlawful means***one so mentally conditioned is deemed unsuited for the instruction of youth in the schools supported by public funds."

"Highest Concern"

Heher went into great length on all the questions surrounding the anti-Communist oath and the reasons therefore. He said that maintenance of the purity of the educational process against corruption by subversive influences is of the highest concern to society and that loyalty to government is a prime requisite for a teacher.

Concerning the danger of foreign ideologies, the court said: "We have long had evidences of the pressure here of a Godless ideology ruthlessly fostered by a foreign power which has for its aim the violent overthrow of government and free society. And one of its weapons is the debasement of teaching as a softening measure in the consummation of the subversive process. The school system affords the opportunity and means for subtle infiltration."