Slochower v. Board of Higher Education of New York City (1956) stands for the legal proposition that laws pertaining to public employees, including faculty members at public colleges and universities, cannot inferentially treat employees’ assertions of Fifth Amendment privilege not to speak for fear of self-incrimination as automatically equivalent to legal wrongdoing. In Slochower, the U.S. Supreme Court invalidated a municipal law that required termination of employment for city workers who sought to raise their privilege against self-incrimination in order to avoid responding to questions relating to their official duties. The Court determined that had the law been enforced, it would have violated their right to due process. In light of the issues that Slochower raises about the due process rights of faculty members to refrain from answering questions about their political activities, this entry reviews the litigation and judicial analyses in the Supreme Court’s ruling.
Facts of the Case
In 1952, officials at Brooklyn College, an institution of higher education under the control of New York City’s Board of Higher Education, terminated the employment of Harry Slochower, a tenured faculty member with 27 years of service at Brooklyn College. The case dealt with events that took place during the anticommunist movement that originated in the 1940s. More specifically, in 1940, the New York State legislature formed the Joint Legislative Committee to Investigate the Educational System of the State of New York, also known as the Rapp-Coudert Committee. The committee was charged with investigating and uncovering the identities of public educational employees who were affiliated with the Communist Party so that its staff members could evaluate the employees’ involvement and assess whether they were fit to teach in New York state public educational institutions. In 1941, a witness testified before the Rapp-Coudert Committee that Professor Slochower had ties to the Communist Party. The record indicated that Slochower testified before the Rapp-Coudert Committee and the Board of Faculty about his Communist Party affiliations in 1940 and 1941.
In 1952, the U.S. Senate’s Internal Security Subcommittee of the Committee on the Judiciary also conducted an investigation of the ties that members of educational communities had to the Communist Party. When Harry Slochower was called to testify, he declared that he was not, at the time, a member of the Communist Party. Although he was willing to testify, he asserted his Fifth Amendment right not to speak about matters that might be self-incriminating. To this end, he refused to respond to inquiries about his affiliations with the Communist Party from 1940 to 1941. The Senate Committee acknowledged Slochower’s constitutional right and did not compel him to testify to these matters. However, soon after, officials at Brooklyn College dismissed Slochower pursuant to a city law that called for terminating the employment of city workers who sought to raise the Fifth Amendment privilege against self-incrimination in order to avoid responding to questions relating to their official duties. Insofar as the law summarily called for dismissal of employees who asserted the Fifth Amendment privilege of not speaking for fear of self-incrimination, for all intents and purposes, the law attached wrongdoing as a foregone conclusion. After all three levels of the state court system in New York upheld the faculty member’s dismissal for refusing to testify, he appealed to the Supreme Court.
The Supreme Court’s Ruling
On further review, the Court reversed in favor of the faculty member in a five-to-four judgment authored by Justice Clark. Slochower’s lawyer argued that officials at Brooklyn College violated his right to due process. Besides alleging that the law unfairly discharged public employees for exercising their Fifth Amendment right against self-incrimination, the plaintiff’s lawyers contended that pursuant to a New York statute, officials could dismiss a tenured faculty member for cause only with proper notice, a hearing, and an opportunity to appeal the initial decision. Yet, the law permitted automatic dismissals when employees asserted their privilege against self-incrimination. Balancing the rights of the public’s interest with those of individuals, the Court emphasized that while the faculty members did not have a guaranteed right to employment, officials at governmental agencies such as the college still had to comply with the U.S. Constitution, which guaranteed faculty members’ right to due process.
In its analysis, the Supreme Court pointed out that absent due process, the law assumed that public employees’ assertion of privilege against self-incrimination summarily translated into wrongdoing, and it did not factor in the reasons individuals might raise the Fifth Amendment privilege in their defense. The Court noted that although witnesses such as the plaintiff may have had reasonable fears of prosecution even though they were innocent of any fault, the law failed to consider any possibility other than wrongdoing. The Court found that such an approach rendered the law arbitrary. Further, the Court was troubled by the fact that although college officials had known about and failed to act on the plaintiff’s Senate testimony for 12 years, they now took it as conclusive evidence of his having been at fault, even though this was a civil rather than a criminal case. The majority decided that the municipal law was unconstitutional, because it violated the plaintiff’s right to due process.
Two different dissenting opinions, written by Justices Reed and Harlan, essentially maintained that the Supreme Court overstepped its authority in considering how public employers regulate the conduct of their employees, including those in higher education.
Slochower is an important case in a line of litigation that highlights the due process protections to which tenured faculty members are entitled before their employment may be terminated. In addition, Slochower is significant because it invalidated the New York City law that presumed fault when individuals invoke their Fifth Amendment right against self-incrimination.
Jeffrey C. Sun
See also Due Process, Substantive and Procedural; loyalty oaths; Political Activities and Speech of Faculty Members
Kilpatrick, R. N. (1976). School personnel, organized professional groups, and the law. Urban Educator, 11(2), 167–184.
Ratner, L. G. (1957). Consequences of exercising the privilege against self-incrimination. University of Chicago Law Review, 24(3), 472–511.
Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956).