Adler v. Board of Education eText - Primary Source

Primary Source

Justice Sherman Minton delivered the opinion of the court for Adler v. Board of Education. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION. Justice Sherman Minton delivered the opinion of the court for Adler v. Board of Education. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION. Published by Gale Cengage AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: Sherman Minton, Hugo L. Black, William O. Douglas

Date: March 3, 1952

Source: Minton, Sherman, Hugo L. Black, and William O. Douglas. Adler v. Board of Education. 342 U.S. 485 (1952). Available online at; website home page: (accessed June 13, 2003).

About the Authors: Sherman Minton (1890–1965) served in the U.S. Senate and the U.S. Court of Appeals prior to being appointed to the Supreme Court by President Harry S. Truman (served 1945–1953), a good friend, in 1949. A New Deal liberal, he surprised many when he began ruling against civil liberties and adopting some of the repressive opinions of the Cold War era. He served until 1956.

Hugo L. Black (1886–1971) served two terms as a U.S. senator from Alabama and was known as a New Deal liberal. His 1937 appointment to the Supreme Court roused controversy when his past membership in the Ku Klux Klan became public, although he had long ago left the group. His term was generally distinguished by his support of civil rights.

William O. Douglas (1898–1980) chaired the Securities and Exchange Commission in 1939, when he became, at forty, one of the youngest men ever appointed to the Supreme Court. He served over thirty-six years, the longest of any justice, retiring in 1975. Many thought Douglas would be pro-business, but he devoted himself to the defense of the Bill of Rights and freedom of speech.


Freedom of speech as protected under the First Amendment has at times not extended to teachers in public institutions. During World War I (1914–1918) many schoolteachers and college professors were dismissed from their jobs for voicing opposition to the war. College professors, as a response to these firings, developed the idea of tenure, which meant that after receiving tenure approval from an advisory committee, a professor could only be fired for gross misconduct. But the issue of firing a teacher for expressing certain political opinions returned with a vengeance at the start of the Cold War after World War II (1939–1945). States and the federal government began investigations to find educators with previous ties to the Communist Party. These people were often fired. Tenure proved little protection to college professors, as the administration often ignored its existence, and no one wanted to stand up for ex-or current communists. In order to keep their jobs, many teachers were required to take an oath, swearing they were not members of the Communist Party.

In 1949, New York enacted the Feinberg law, which authorized the public school authorities to fire employees who were found to advocate the overthrow of the government by unlawful means or were unable satisfactorily to explain membership in certain subversive organizations. A group of concerned taxpayers and teachers represented by Irving Adler challenged the law. New York courts upheld the Feinberg law, and the case went to the Supreme Court.


In Adler v. Board of Education the Court took a very narrow view of the issue. Part of this was undoubtedly due to the fact that the Cold War was in full swing in the early 1950s. At this time of the Red Scare, politicians saw communists under every bed in Washington. The majority opinion of the Court was that communists and communism were a threat and that while one had a right to be a communist, one did not have a right to be a schoolteacher. Thus, the requirement that one not be a communist to be a schoolteacher did not violate anyone's rights. The dissenters held that schoolteachers had the same rights as anyone else, and so the requirement that they not be communists was unconstitutional.

The view of the majority in Adler—that institutions can discharge people for being communists or members of other "dangerous" organizations—held sway throughout most of the 1950s. Professors were discharged from colleges, and their dismissals were generally upheld. The court did require adequate procedural safeguards for these firings and overturned some that did not have these safeguards. In the 1960s, however, teachers developed increased union protection and the Court turned more liberal. As the Red Scare passed, many state programs, including loyalty oaths (where one had to swear loyalty to the country and against the Communist Party) and the requirement that one not be a communist, were struck down. Generally these holdings have prevailed since that time.

Primary Source: Adler v. Board of Education [excerpt]

SYNOPSIS: Justice Sherman Minton summarizes the purpose of the Feinberg law, which is to keep people who have advocated the overthrow of the government from passing propaganda amongst students. Justice Hugo L. Black dissents, arguing that once the government starts deciding what teachers can think and say, the free exchange of ideas will cease. Justice William O. Douglas dissents as well, upholding teachers' freedom of thought and association.

Mr. Justice Minton delivered the opinion of the Court.…

… It is the purpose of the Feinberg Law to provide for the disqualification and removal of superintendents of schools, teachers, and employees in the public schools in any city or school district of the State who advocate the overthrow of the Government by unlawful means or who are members of organizations which have a like purpose.…

It is first argued that the Feinberg Law and the rules promulgated thereunder constitute an abridgment of the freedom of speech and assembly of persons employed or seeking employment in the public schools of the State of New York.

It is clear that such persons have the right under our law to assemble, speak, think and believe as they will.… It is equally clear that they have no right to work for the State in the school system on their own terms.… They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.

The constitutionality of the first proposition is not questioned here.…

As to the second, it is rather subtly suggested that we should not follow our recent decision in Garner v. Los Angeles Board. We there said:

We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship … to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry and are not less relevant in public employment.

We adhere to that case. A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining

the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate.

If, under the procedure set up in the New York law, a person is found to be unfit and is disqualified from employment in the public school system because of membership in a listed organization, he is not thereby denied the right of free speech and assembly. His freedom of choice between membership in the organization and employment in the school system might be limited, but not his freedom of speech or assembly, except in the remote sense that limitation is inherent in every choice. Certainly such limitation is not one the state may not make in the exercise of its police power to protect the schools from pollution and thereby to defend its own existence.…

Membership in a listed organization found to be within the statute and known by the member to be within the statute is a legislative finding that the member by his membership supports the thing the organization stands for, namely, the overthrow of government by unlawful means. We cannot say that such a finding is contrary to fact or that "generality of experience" points to a different conclusion. Disqualification follows therefore as a reasonable presumption from such membership and support. Nor is there here a problem of procedural due process. The presumption is not conclusive but arises only in a hearing where the person against whom it may arise has full opportunity to rebut it.…

Where, as here, the relation between the fact found and the presumption is clear and direct and is not conclusive, the requirements of due process are satisfied.…

We find no constitutional infirmity in 12-a of the Civil Service Law of New York or in the Feinberg Law which implemented it, and the judgment is


Mr. Justice Black, dissenting.

While I fully agree with the dissent of Mr. Justice Douglas, the importance of this holding prompts me to add these thoughts.

This is another of those rapidly multiplying legislative enactments which make it dangerous—this time for school teachers—to think or say anything except what a transient majority happen to approve at the moment. Basically these laws rest on the belief that government should supervise and limit the flow of ideas into the minds of men. The tendency of such governmental policy is to mould people into a common intellectual pattern. Quite a different governmental policy rests on the belief that government should leave the mind and spirit of man absolutely free. Such a governmental policy encourages varied intellectual outlooks in the belief that the best views will prevail. This policy of freedom is in my judgment embodied in the First Amendment and made applicable to the states by the Fourteenth. Because of this policy public officials cannot be constitutionally vested with powers to select the ideas people can think about, censor the public views they can express, or choose the persons or groups people can associate with. Public officials with such powers are not public servants; they are public masters.

I dissent from the Court's judgment sustaining this law which effectively penalizes school teachers for their thoughts and their associates.…

Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting.

I have not been able to accept the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights. I cannot for example find in our constitutional scheme the power of a state to place its employees in the category of second-class citizens by denying them freedom of thought and expression. The Constitution guarantees freedom of thought and expression to everyone in our society. All are entitled to it; and none needs it more than the teacher.

The public school is in most respects the cradle of our democracy. The increasing role of the public school is seized upon by proponents of the type of legislation represented by New York's Feinberg law as proof of the importance and need for keeping the school free of "subversive influences." But that is to misconceive the effect of this type of legislation. Indeed the impact of this kind of censorship on the public school system illustrates the high purpose of the First Amendment in freeing speech and thought from censorship.

The present law proceeds on a principle repugnant to our society—guilt by association. A teacher is disqualified because of her membership in an organization found to be "subversive." The finding as to the "subversive" character of the organization is made in a proceeding to which the teacher is not a party and in which it is not clear that she may even be heard. To be sure, she may have a hearing when charges of disloyalty are leveled against her. But in that hearing the finding as to the "subversive" character of the organization apparently may not be reopened in order to allow her to show the truth of the matter. The irrebuttable charge that the organization is "subversive" therefore hangs as an ominous cloud over her own hearing. The mere fact of membership in the organization raises a prima facie case of her own guilt. She may, it is said, show her innocence. But innocence in this case turns on knowledge; and when the witch hunt is on, one who must rely on ignorance leans on a feeble reed.

The very threat of such a procedure is certain to raise havoc with academic freedom. Youthful indiscretions, mistaken causes, misguided enthusiasms—all long forgotten—become the ghosts of a harrowing present. Any organization committed to a liberal cause, any group organized to revolt against an hysterical trend, any committee launched to sponsor an unpopular program becomes suspect. These are the organizations into which Communists often infiltrate. Their presence infects the whole, even though the project was not conceived in sin. A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled.

But that is only part of it. Once a teacher's connection with a listed organization is shown, her views become subject to scrutiny to determine whether her membership in the organization is innocent or, if she was formerly a member, whether she has bona fide abandoned her membership.

The law inevitably turns the school system into a spying project. Regular loyalty reports on the teachers must be made out. The principals become detectives; the students, the parents, the community become informers. Ears are cocked for tell-tale signs of disloyalty. The prejudices of the community come into play in searching out the disloyal. This is not the usual type of supervision which checks a teacher's competency; it is a system which searches for hidden meanings in a teacher's utterances.…

What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A "party line"—as dangerous as the "party line" of the Communists—lays hold. It is the "party line" of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin.

This, I think, is what happens when a censor looks over a teacher's shoulder. This system of spying and surveillance with its accompanying reports and trials cannot go hand in hand with academic freedom. It produces standardized thought, not the pursuit of truth. Yet it was the pursuit of truth which the First Amendment was designed to protect. A system which directly or inevitably has that effect is alien to our system and should be struck down. Its survival is a real threat to our way of life. We need be bold and adventuresome in our thinking to survive. A school system producing students trained as robots threatens to rob a generation of the versatility that has been perhaps our greatest distinction. The Framers knew the danger of dogmatism; they also knew the strength that comes when the mind is free, when ideas may be pursued wherever they lead. We forget these teachings of the First Amendment when we sustain this law.

Of course the school systems of the country need not become cells for Communist activities; and the classrooms need not become forums for propagandizing the Marxist creed. But the guilt of the teacher should turn on overt acts. So long as she is a law-abiding citizen, so long as her performance within the public school system meets professional standards, her private life, her political philosophy, her social creed should not be the cause of reprisals against her.

Further Resources


American Municipal Association. Loyalty Oaths For Municipal Employees: Report of an Inquiry to State Leagues and Associations of Municipalities. Chicago [no publisher], 1954.

Bryson, Joseph E. Legality of Loyalty Oath and Non-Oath Requirements for Public School Teachers. Boone, N.C. [no publisher], 1963.

Ellis, Charley. If We Remain Silent.… Los Angeles: United Defense Committee Against "Loyalty" Checks, 1950.

Gugin, Linda C., and James E. St. Clair. Sherman Minton: New Deal Senator, Cold War Justice. Indianapolis: Indiana Historical Society, 1997.

Hyman, Harold Melvin. To Try Men's Souls: Loyalty Tests in American History. Berkeley, Calif.: University of California Press, 1960.

Radcliff, William Franklin. Sherman Minton: Indiana's Supreme Court Justice. Indianapolis, Ind.: Guild Press of Indiana, 1996.


Atkinson, David N. "Justice Sherman Minton and the Protection of Minority Rights." Washington and Lee Law Review 34, no.1, Winter 1977, 97–117.