Saturday, December 13, 2008

American academicians discarded their Akujanji (Loyalty Oath), 1954

Timeline:
Summary of events of the Loyalty Oath Controversy 1949-54


1949

January / February / March

• California State Senator Tenney introduces thirteen bills in reaction to suspected communists in government. University of California administrators are concerned that widespread anti-communist sentiment will result in new laws threatening the University's traditional autonomy from direct control by the State Legislature.

• At UCLA a speaking invitation to left-wing British Labour Party activist and economist Harold Laski and an on-campus debate on Communism in higher education which includes a fired University of Washington Professor, Herbert Phillips, draw critical attention to the University from conservative Regents and the press.

• March 25. UC President Sproul proposes that UC employees, including faculty, be required to swear to a new Oath stating that they are not members of the Communist party. The UC Board of Regents approves Sproul's proposal.

April / May / June

• UC faculty begin to learn about the new Oath requirement. Many are concerned that the Oath infringes on academic freedom.

• June 14. The Northern Section of the Academic Senate meets in Berkeley. The Senate votes to ask the Regents to revise or remove the oath. A Senate Advisory Committee is appointed to meet with President Sproul, as the semester comes to an end.

• June 24. The Regents meet and approve a revised Oath. Several Regents believe the revised proposal has been negotiated with the Academic Senate Advisory Committee and faculty concerns have thus been addressed.

• June 24. The State Assembly votes down the anti-communist Tenney bills.

• June 27. In response to The Regents vote, some sixty faculty members meet at Berkeley's Faculty Club to organize against the Oath.



July / August / September

• President Sproul writes to faculty members requesting that the signed Oath be returned by October 1. About half of the faculty have signed by the end of August.

• Leading professors tell President Sproul that faculty opposition to the Oath is widespread and a confrontation with The Regents' position is likely.

• September 19. The Northern Section of the Academic Senate resolutions supporting a prohibition on the University employing anyone "whose commitments or obligations to any organization, Communist or other, prejudice impartial scholarship and the free pursuit of truth." The second resolution asks that faculty be allowed to sign the State Constitutional oath and, by implication, no other special oath.

• September 23. The Regents appoint a committee to confer with the faculty's Advisory Committees. Many Regents felt the issue had been solved earlier in the year with the consent of the Academic Senate Advisory Committee.

• September 27. The House Un-American Activities Committee opens inquiries into alleged Communist infiltration of the Radiation Laboratory at Berkeley; faculty and staff from the "Rad Lab" played a leading role in developing the atomic bomb.

• September 29. Regents and Academic Senate representatives negotiate. The faculty state that many feel they did not have time to properly assess and respond to The Regents' Oath action in the Spring. Regents say they feel the Academic Senate has changed its position about an Oath and put The Regents in a difficult position.

• The Regents agree that faculty appointment letters for the 1949-50 academic year will be released to faculty who have not yet signed the Oath.



October / November / December

• The Northern and Southern Divisions of the Academic Senate discuss the Oath and pass resolutions of concern and opposition, antagonizing some Regents.

• In October, the Regents direct that letters be sent to all faculty requesting they sign the oath or an equivalent affirmation.

• November 30. "Non-signers" of the Oath formally organize themselves at Berkeley, led by Edward Tolman, a respected psychology professor.

• Inconclusive meetings between Regents and faculty. In December The Regents fire a UC Berkeley Physics TA who had been called before the House Un-American Activities Committee in September and is suspected of being a Communist.

1950

January / February / March

• Regents meet and reaffirm an anti-communist policy. California Governor Earl Warren leads Regental opposition to the Oath. He is opposed by Regents led by John Francis Neylan, who believe giving in to the faculty would compromise the governing authority of the Regents, and also fear that there are Communists within the University.

• United States Senator Joseph McCarthy makes his sensational charge (later found to be untrue) that there are more than 200 "card carrying Communists" in the United States State Department. Anti-communist sentiment is strong around the country.

• February 24. The Regents vote 12-6 for a proposal from Regent Neylan that faculty not signing the Oath by April 30 will be terminated by June 30. Faculty call this the "sign or get out policy".

• The faculty prepare for legal action. 150 meet at Berkeley and say they will not sign and will accept dismissal. The Regents' action is seen as a direct challenge to academic freedom and the right of tenure, since it would allow The Regents to fire tenured professors without due process, including a hearing before the Academic Senate Committee on Privilege and Tenure.

• President Sproul publicly disagrees with The Regents by saying that the welfare of the University will not be served by insisting on the Oath.

• March 6. 8,000 students attend a meeting at Berkeley to hear a discussion of the Oath issues and controversy.

• March 7. About 750 faculty attend a Northern Section of the Academic Senate meeting at Berkeley. They approve a resolution opposing The Regents action and vote to conduct a secret mail ballot among faculty on two propositions regarding whether faculty support the University's policy against employment of Communists.

• March 22. Results of the mail vote are released. By about a four to one margin UC faculty say they oppose the University employing Communists. Many hope this will help solve the crisis, by showing most faculty and Regents agree on anti-Communism.

• Faculty colleagues and professional organizations throughout the country express support for the faculty position at UC. However, public opinion in general runs against the faculty who say they will not sign the Oath.

• March 31. The Regents meet. The debate has now shifted from the matter of Communists in the University to the issue of who controls the University. The Neylan faction on The Regents feels that backing down would compromise The Regents' governing authority. The faculty feel that if The Regents can unilaterally add a condition of employment like the Oath and dismiss faculty solely because of it, the tradition of "shared governance" at UC and the right of tenure will have been violated. At the conclusion of the meeting the Regents split 10-10 on a motion to withdraw the February 24 ultimatum to sign the Oath. The ultimatum stands.

• Behind-the-scenes negotiations and efforts to find a further compromise continue. A committee of leading UC alumni work to find a solution.

• Faculty members are discouraged and divided. Some want the controversy to end, and see the "non-signers" as uncompromising. Others feel that that core rights and values of the academic world are at stake, and will fight to the end.



April / May / June

• April 21. By a vote of 21-1 The Regents they endorse a proposal that includes a modified Oath. Those faculty who do not sign it may have a hearing before the Academic Senate's Committees on Privilege and Tenure, a provision included to protect due process for faculty. The Regents retain final authority to decide who stays.

• April 30. Miriam Sherman, a non-academic UCLA employee who has been suspected of having Communist sympathies is fired.

• The Academic Senate's Committees of Privilege and Tenure begin to hold hearings into the cases of faculty who have not signed the Oath. A difference of opinion quickly develops. Some Regents who approved of the hearing process maintain that the Committees should not favorably recommend any faculty member who does not sign the Oath without a specific religious or similar reason for refusing. Many faculty maintain, however, that those opposed to the Oath on principles of academic freedom or similar reasons should receive a favorable review.

• 81 cases of non-signers are heard before the Committees, which recommend that 75 of the non-signers be retained as UC employees. Six are recommended for dismissal.

• June 23. President Sproul asks that 157 employees (academic and non-academic) be terminated for not signing the Oath or for related reasons, but that 62 of the 75 non-signers recommended by the Academic Senate Committees be retained.

• June 25. North Korea invades South Korea. The war heightens public sentiment against, and fears of, Communism, and the position of the non-signers is weakened.



July through December

• July 21. The Regents vote 10-9 to support President Sproul's recommendations and retain the majority of the non-signing faculty, now reduced to a group of 39.

• August 25. The Regents meet, and vote 12-10 to reverse their July decision and fire the non-signers. Some sign after the vote, and a total of 31 faculty are fired. (Those fired include Tolman and David Saxon, a UCLA professor who become UC President a generation later.)

• August 31. The non-signers sue for reinstatement, in the case of Tolman v. Underhill, arguing that UC faculty are public offers under the State Constitution and are thus exempt from any special oath, that the University is required by the Constitution to be free from "political or sectarian influence" and the Oath compromised that requirement, and that the action of The Regents violates the principle of tenure. The next day the Court of Appeals issues a preliminary order staying the dismissal and requiring The Regents to explain their actions.

• September 21. Governor Warren, who had opposed the UC Oath but is up for reelection, asks the Legislature to approve a special loyalty oath for all State employees. The Legislature passes the "Levering Oath" in five days. Regent Neylan is against the Levering Oath because he feels the Legislature should not be interfering in the autonomous governing authority of The Regents.

• The Academic Senate votes to "censure" The Regents, but faculty remain deeply divided on goals, tactics, and opinions about the Oath.

• Various legal hearings occur in Tolman v. Underhill.

1951

• The Academic Senate Committee on Academic Freedom issues a report saying that the University has been harmed by the faculty dismissals; 55 courses are not being taught because their faculty are gone, and at least 47 individuals offered faculty positions at UC have declined at least in part because of the Oath controversy.

• April 6. The Court of Appeal rules in Tolman v. Underhill against The Regents, stating that they had violated the Constitutional prohibition on political influence on the University, and that faculty are public officers as defined by the State Constitution. The case goes to the State Supreme Court on Appeal.

• October 19. The Board of Regents, with some new members, votes 12-8 to rescind the special Oath requirement but reaffirm the University policy against employing Communists. An effort by Regent Neylan to reverse the vote fails 12-5 in November. The University has returned to its earlier conditions of employment before the Oath controversy, although all UC employees must now also sign the Levering Oath required of all State employees.

1952

• October 17. The State Supreme Court rules in Tolman v. Underhill in favor of the non-signers and orders the University to reinstate them. The Regents decide not to petition for a rehearing.

1954

• Sixteen non-signers go to court seeking full back pay for the period they were unemployed by UC. A settlement is negotiated in March.

Compiled by Steve Finacom

SEE BELOW:

Decision
OF THE DISTRICT COURT OF APPEAL,
STATE OF CALIFORNIA,
THIRD APPELLATE DISTRICT,

Concerning the Special Loyalty Declaration
at the University of California

In a Suit for Writ of Mandate Brought by the Following Members of the Faculty of the University of California: Edward C. Tolman, Arthur H. Brayfield, Hubert S. Coffey, Leonard A. Doyle, Ludwig Edelstein, Edwin S. Fussell, Margaret T. Hodgen, Ernst H. Kantorowicz, Harold W. Lewis, Hans Lewy, Jacob Loewenberg, Charles S. Muscatine, John M. O'Gorman, Stefan Peters, Brewster Rogerson, Edward Hetzel Schafer, Pauline Sperry and Gian Carlo Wick.

(Reprinted from Advance California Reports (A.C.A.), April 13, 1951.)
[Civ. No. 7946. Third Dist. Apr. 6, 1951.]
[3]

EDWARD C. TOLMAN et al., Petitioners, v. ROBERT M. UNDERHILL, as Secretary and Treasurer of Regents of University of California, et al., Respondents.

[1] Universities—Powers and Duties—Legislative Control.—Const., art. IX, § 9, confers on the Regents of the University of California broad powers with respect to the government of the university, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowments of the university and the security of its funds.

[2] Id.—Powers and Duties—Judicial Interference.—In view of the broad powers of organization and government which are conferred on the Regents of the University of California by Const., art. IX, § 9, the court may not inquire lightly into the affairs of the regents, and should exercise jurisdiction only where the regents have acted without power in contravention of law.

[3] Public Officers—Oath.—In adopting Const., art. XX, § 3, the people intended that no one could be subjected, as a condition to holding office, to any test of political or religious belief other than his pledge to support the Constitutions of the state and of the United States; that that pledge is the highest loyalty that can be demonstrated by any citizen; and that the exacting of any other test of loyalty would be antithetical to our fundamental concept of freedom.

[4] Constitutional Law—Construction of Constitutions—Harmonizing of Whole.—The meaning of any particular provision of the Constitution is to be ascertained by considering the Constitution as a whole, and it is the duty of the court in interpreting the Constitution to harmonize all its provisions.

[5] Universities—Regulations—Loyalty Test.—In view of the constitutional mandate that the University of California shall be entirely independent of all political or sectarian influence (Const., art. IX, § 9), members of the faculty are to be included within the term "office or public trust" as used in Const., art. XX, § 3, and cannot be subjected to any more narrow


[4]
test of loyalty than the constitutional oath prescribed in that section.

[6] Id.—Powers and Duties—Appointment and Dismissal of Professional Personnel.—Subject to such reasonable rules of tenure as the regents may adopt, the appointment and dismissal of professional personnel of the University of California is largely within the discretion of the regents.

[7] Id.—Judicial Remedies.—The imposition by the Regents of the University of California of a "loyalty oath" more narrow than the constitutional oath prescribed by Const., art. XX, § 3, and in violation of that section, as a condition to appointment to the faculty, is an abuse of discretion for which mandamus will lie to compel the reinstatement of nonsigning faculty members whose rights of tenure are otherwise unquestioned.

[1] See 25 Cal.Jur. 411; 55 Am.Jur. 7.

[3] See 21 Cal.Jur. 867, 869; 42 Am.Jur. 884.

[4] See 5 Cal.Jur. 583; 11 Am.Jur. 611.

McK. Dig. References: [1, 2, 5, 6] Universities, § 8; [3] Public Officers, § 35; [4] Constitutional Law, § 19; [7] Universities, § 9.

Proceeding in mandamus to compel Board of Regents of University of California to issue letters of appointment to positions as members of faculty for academic year. Writ granted.

Stanley A. Weigel for Petitioners.

Pillsbury, Madison & Sutro, Eugene M. Prince and Francis R. Kirkham for Respondents.

PEEK, J.—This is an original proceeding for a writ of mandate to compel the Board of Regents of the University of California and Robert M. Underhill, as secretary and treasurer thereof, to issue to petitioners herein letters of appointment to positions as members of the faculty of the university for the academic year of July 1, 1950, to June 30, 1951.

The petition alleges that petitioners are members of the faculty of the University of California of Academic Senate rank; that respondents are each members of a public corporation known as the Regents of the University of California; that the regents, in accordance with authority granted to them by the state Constitution, have established an Academic Senate vested with certain powers relating to appointment, tenure and dismissal of faculty members; that the regents on April 21, 1950, adopted a resolution (more particularly set forth hereinafter) carrying out certain recommendations of the California Alumni Association relative to the signing of a socalled "Loyalty Oath" by the faculty of the university; that each of the petitioners (all of whom are nonsigners thereof), pursuant to the resolution, petitioned the president of the university for a review of his case by the Committee on Privilege and Tenure of the Academic Senate; that each petitioner


[5]
appeared before the said committee which, after full investigation, recommended the appointment of each petitioner to his regular post on the faculty of the university; that on July 21, 1950, upon the recommendation of the president of the university, the regents by resolution appointed each of the petitioners to his respective post; that notwithstanding their appointments, respondent Underhill refused to transmit letters of appointment to petitioners; that subsequently on August 25, 1950, the regents refused to recognize the appointment of petitioners; that if respondent Underhill is not ordered by this court to transmit the letters of appointment, irreparable injury to both petitioners and the people of the State of California will result; that petitioners have no plain, speedy or adequate remedy at law.

To this petition respondents filed their general and special demurrer and answer. This court on September 1, 1950, ordered that respondents take no action to enforce any resolution with respect to the nonappointment of petitioners or termination of their posts and that the 10-day period granted petitioners by respondents should not expire until 10 days following any further order of this court specifying that such period shall commence to run.

Before discussing the facts of the dispute which culminated in the filing of this petition it is important to note by way of background, that the regents of the university in 1920 by resolution provided "that appointment as associate or full professor carries with it the security of tenure in the full academic sense." At no time prior to the present controversy was that resolution superseded or modified. It further appears that since 1920 the regents and the faculty of the university have considered professors of the designated rank as not subject to arbitrary dismissal and entitled to all the incidents of tenure as it is commonly understood in American universities.

The record further discloses that for approximately a year and a half prior to April 21, 1950, the regents, the faculty and the alumni association had considered the question of ways and means to implement the stated policy of the regents of barring members of the Communist Party from employment at the university by means of a "Loyalty Oath." These discussions culminated in a meeting held on April 21, 1950, at which the regents passed a resolution providing that after July 1, 1950, the beginning date of the new academic year, conditions precedent to employment or renewal of employment


[6]
at the university would be (1) execution of the constitutional oath required of public officials of the State of California, and (2) acceptance of appointment by a letter which contained the following provision:

"Having taken the constitutional oath of office required of public officials of the State of California, I hereby formally acknowledge my acceptance of the position and salary named, and also state that I am not a member of the Communist Party or any other organization which advocates the overthrow of the government by force or violence, and that I have no commitments in conflict with my responsibilities with respect to impartial scholarship and free pursuit of truth. I understand that the foregoing statement is a condition of my employment and a consideration of payment of my salary."

The resolution further provided that,

"In the event that a member of the faculty fails to comply with any foregoing requirement applicable to him he shall have the right to petition the President of the University for a review of his case by the Committee on Privilege and Tenure of the Academic Senate, including an investigation of and full hearing on the reasons for his failure so to do. Final action shall not be taken by the Board of Regents until the Committee on Privilege and Tenure, after such investigation and hearing, shall have had an opportunity to submit to the Board, through the President of the University, its findings and recommendations. It is recognized that final determination in each case is the prerogative of the Regents."

Some 39 professors at the university who refused to sign the affirmation set forth in the regents' resolution accepted what they apparently believed to be the alternative to the signing of the oath as set forth in the resolution and petitioned the president of the university for a hearing before the Committee on Privilege and Tenure of the Academic Senate. The hearing resulted in favorable findings and recommendations by that committee as to each of the professors. On July 21, 1950, the regents met and by a vote of 10 to 9 accepted those recommendations and appointed the nonsigning professors to the faculty for the coming academic year. Following the passage of the resolution one of the regents gave notice that he would change his vote from "No" to "Aye" and move to reconsider at the next meeting. At the next meeting of the regents, on August 25, 1950, a motion to reconsider the matter of the appointments was passed by a vote of 12 to 10 (one absent member stated by telegram that he would


[7]
vote "No" if he were present), and the resolution adopting the recommendations of the Committee on Privilege and Tenure and appointing the professors to the faculty was defeated by a like vote of 12 to 10. Following this a motion was unanimously carried granting the nonsigning professors 10 days in which to comply by signing the statement prescribed in the resolution of April 21.

Petitioners herein were among those professors who refused to sign the so-called "loyalty" statement. All of the petitioners are scholars of recognized ability and achievement in their respective fields. Additionally it should be noted that it is conceded that none of the petitioners has been charged with being a member of the Communist Party or in any way subversive or disloyal.

Article IX of the Constitution which declares the policy of this state as to education provides at the outset in section 1 thereof that education is "essential to the preservation of the rights and liberties of the people . . ." Section 9 of that article establishes the University of California as a "public trust, to be administered by the existing corporation known as `The Regents of the University of California,' with full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowments of the university and the security of its funds." Thereafter follow detailed provisions relating to the membership of the board of regents and their powers and duties. The section concludes with this provision: "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs. . . ."

[1] It is evident therefrom that the Constitution has conferred upon the regents broad powers with respect to the government of the university, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowments of the university and the security of its funds. (Hamilton v. Regents of the University of California, 219 Cal. 663 [28 P.2d 355]; Wall v. Board of Regents, 38 Cal.App.2d 698 [102 P.2d 533].) [2] It follows that this court may not inquire lightly into the affairs of the regents, and should exercise jurisdiction only where the regents have acted without power in contravention of law.

The validity of the action taken by the regents on August 25, 1950, is first challenged by petitioners on the ground that the affirmative statement demanded as a condition to their


[8]
continued employment is a violation of section 3 of article XX of the Constitution which prescribes the form of oath for all officers, executive and judicial, and concludes with the prohibition that "no other oath, declaration or test, shall be required as a qualification for any office or public trust."

Respondents' answer to this argument is that the constitutional provision is not here applicable because members of the faculty of the university do not hold office or positions of public trust. In support of their position respondents place great reliance on Leymel v. Johnson, 105 Cal.App. 694 [288 P. 858]. There it was held that section 19 of article IV of the Constitution, which provides that "No Senator or member of Assembly shall, during the term for which he shall have been elected, hold or accept any office, trust, or employment under this State; provided, that this provision shall not apply to any office filled by election by the people," did not preclude a member of the Legislature from also holding a position as a teacher in the public schools of the city of Fresno. The court's holding was that the position of instructor in a public high school was not an "office, trust, or employment under this State," as those terms are used in section 19 of Article IV of the Constitution.

That the decision is limited to the particular provision of the Constitution there in question is indicated by the fact that the court gave serious consideration to the purposes of the people in adopting that section of the Constitution, citing Chenoweth v. Chambers, 33 Cal.App. 104 [164 P. 428], where this court held that the intent and purpose of said section was that "those who execute the laws should not be the same individuals as those who make the laws."

There is nothing either in the Leymel case or any other case cited by respondents which is conclusive of the status of petitioners with respect to the constitutional oath of office as set forth in section 3 of article XX. Furthermore it is necessary in this case, as it was in the Leymel case, in dealing with another provision of the Constitution, to consider the purposes and intent of the people of California in adopting said section 3 of Article XX. While the courts of this state have had no occasion in the past to discuss specifically the purposes behind this section, the history of the English and American peoples in their struggle for political and religious freedom offers ample testimony to the aims which motivated the adoption of the provision.

A similar provision is found in clause 3 of article 6 of


[9]
the federal Constitution where it is stated that all legislative, executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation to support the Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. Speaking of this provision, Mr. Chief Justice Hughes, in his dissenting opinion in United States v. Macintosh, 283 U.S. 605, 631 [51 S.Ct. 570, 75 L.Ed. 1302, 1313], which views were later upheld in Girouard v. United States, 328 U.S. 61 [66 S.Ct. 826, 90 L.Ed. 1084, said:

"I think that the requirement of the oath of office should be read in the light of our regard from the beginning for freedom of conscience . . . To conclude that the general oath of office is to be interpreted as disregarding the religious scruples of these citizens and as disqualifying them for office because they could not take the oath with such an interpretation would, I believe, be generally regarded as contrary not only to the specific intent of the Congress but as repugnant to the fundamental principle of representative government."

Again, in the case of United States v. Schwimmer, 279 U.S. 644 [49 S.Ct. 448, 73 L.Ed. 889], Mr. Justice Holmes, whose dissenting views were likewise upheld in the Girouard case, said at page 654, ". . . if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."

In the Girouard case, which was the last in this line of cases involving aliens who had been barred from naturalization because their then religious beliefs would not permit them to bear arms to defend the country, Mr. Justice Douglas, speaking for the court in approving the views expressed by Hughes and Holmes and holding that such aliens were not barred from citizenship, succinctly stated at page 69: "The test oath is abhorrent to our tradition."

This basic principle was also discussed by Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624 [63 S.Ct. 1178, 147 A.L.R. 674, 87 L.Ed. 1628], the last of the "flag salute" cases where, in speaking for the court he said, at page 642:

"But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.


[10]

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

At this late date it is hardly open to question but that the people of California in adopting section 3 of article XX also meant to include in our state Constitution that fundamental concept of what Mr. Chief Justice Hughes referred to as "freedom of conscience" and Mr. Justice Holmes called the "principle of free thought." [3] Paraphrasing their words we conclude that the people of California intended, at least, that no one could be subjected, as a condition to holding office, to any test of political or religious belief other than his pledge to support the Constitutions of this state and of the United States; that that pledge is the highest loyalty that can be demonstrated by any citizen, and that the exacting of any other test of loyalty would be antithetical to our fundamental concept of freedom. Any other conclusion would be to approve that which from the beginning of our government has been denounced as the most effective means by which one special brand of political or economic philosophy can entrench and perpetuate itself to the eventual exclusion of all others; the imposition of any more inclusive test would be the forerunner of tyranny and oppression.

[4] It is a well established principle of constitutional interpretation that the meaning of any particular provision is to be ascertained by considering the Constitution as a whole and that the duty of the court in interpreting the Constitution is to harmonize all its provisions. (In re Oliverez, 21 Cal. 415; Edler v. Hollopeter, 214 Cal. 427 [6 P.2d 245].) A strikingly analogous application of this principle of construction is found in West Virginia State Board of Education v. Barnette, supra, where Mr. Justice Jackson said at page 639:

"In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific


[11]
prohibitions of the First become its standard." (Emphasis ours.)

[5] In the problem of interpretation with which we are presently confronted, we find in the specific mandate of section 9 of Article IX of our Constitution, providing that the university shall be entirely independent of all political or sectarian influence, a standard by which to decide the question of whether or not the petitioners herein are to be included within the term "office or public trust" as used in section 3 of article XX. It goes without saying that in the practical conduct of the affairs of the university the burden of so preserving it free from sectarian and political influence must be borne by the faculty as well as by the regents. Hence, if the faculty of the university can be subjected to any more narrow test of loyalty than the constitutional oath, the constitutional mandate in section 9 of article IX would be effectively frustrated, and our great institution now dedicated to learning and the search for truth reduced to an organ for the propagation of the ephemeral political, religious, social and economic philosophies, whatever they may be, of the majority of the board of regents of that moment.

It must be concluded that the members of the faculty of the university, in carrying out this most important task, fall within the class of persons to whom the framers of the Constitution intended to extend the protection of section 3 of article XX.

While this court is mindful of the fact that the action of the regents was at the outset undoubtedly motivated by a desire to protect the university from the influences of subversive elements dedicated to the overthrow of our constitutional government and the abolition of our civil liberties, we are also keenly aware that equal to the danger of subversion from without by means of force and violence is the danger of subversion from within by the gradual whittling away and the resulting disintegration of the very pillars of our freedom.

It necessarily follows that the requirement that petitioners sign the form of contract prescribed in the regents' resolution of April 21, 1950, was and is invalid, being in violation both of section 3 of article XX and section 9 of article IX of the Constitution of the State of California, and that petitioners cannot be denied reappointment to their posts solely because of their failure to comply with the invalid condition therein set forth.

[6] Subject to such reasonable rules of tenure as the regents may adopt, the appointment and dismissal of professional personnel of the university is a matter largely within the discretion of the regents. (Wall v. Board of Regents, supra.) Nevertheless, in the event of proof of an abuse of discretion the "propriety of the remedy . . . is clear." (Landsborough v. Kelly, 1 Cal.2d 739 [37 P.2d 93].) [7] Thus in the present case the imposition of the oath in question being violative of the applicable constitutional provisions, the abuse of discretion is clear, and hence this court may compel the reinstatement of petitioners to their respective positions. (See also Inglin v. Hoppin, 156 Cal. 483 [105 P.2d 582].)

In view of the foregoing it is unnecessary to consider the further contentions of petitioners that the resolution of July 21, 1950, constituted an irrevocable appointment of the petitioners, and that the action of the regents constituted an arbitrary dismissal in violation of petitioners' tenure rights.

Therefore, since the letters of appointment issued to petitioners following the regents' resolution of April 21, 1950, were subject to the condition that the petitioners sign letters of acceptance of appointment containing the affirmative statement, the requirement of which we have held to be invalid, it is the order of this court that the writ issue directing respondents by their secretary, respondent Underhill, to issue to each of the petitioners a letter of appointment to his regular post on the faculty of the university, which appointment shall not be subject to the aforementioned invalid condition. Provided that, if any of petitioners has not yet executed the constitutional oath of office as provided in the said resolution of April 21, 1950, the respondents may require that such petitioner, as a condition precedent to his appointment, execute said constitutional oath.

Let the writ issue.

Adams, P. J., and Van Dyke, J., concurred.


SOURCE: http://sunsite.berkeley.edu/uchistory/archives_exhibits/loyaltyoath/timeline1951_1956.html

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The Bhagavad Gita

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Jesus of Nazareth

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Siddharta Gautama

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Prophet Muhammad (Pbuh)

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