Slochower v. Board of Education
Decided on Apr. 9, 1956; 350 US 551


A. Issues Discussed: Due Process

B. Legal Question Presented:

Does a city's charter prohibiting the use by employees of the Fifth Amendment privilege against self-incrimination violated their due process rights?


A. Background:

"This appeal brings into question the constitutionality of 903 of the Charter of the City of New York. That section provides that whenever an employee of the City utilizes the privilege against self-incrimination to avoid answering a question relating to his official conduct, 'his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.' Appellant Slochower invoked the privilege against self-incrimination under the Fifth Amendment before an investigating committee of the United States Senate, and was summarily discharged from his position as associate professor at Brooklyn College, an institution maintained by the City of New York. He now claims that the charter provision, as applied to him, violates both the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment.

On September 24, 1952, the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate held open hearings in New York City. The investigation, conducted on a national scale, related to subversive influences in the American educational system. At the beginning of the hearings the Chairman stated that education was primarily a state and local function, and therefore the inquiry would be limited to 'considerations affecting national security, which are directly within the purview and authority of the subcommittee.' Hearings Before the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of Senate Committee on the Judiciary. Professor Slochower, when called to testify, stated that he was not a member of the Communist Party, and indicated complete willingness to answer all questions about his associations or political beliefs since 1941. But he refused to answer questions concerning his membership during 1940 and 1941 on the ground that his answers might tend to incriminate him. The Chairman of the Senate Subcommittee accepted Slochower's claim as a valid assertion of an admitted constitutional right...

Shortly after testifying before the Internal Security Subcommittee, Slochower was notified that he was suspended from his position at the College; three days later his position was declared vacant 'pursuant to the provisions of Section 903 of the New York City Charter.'

Slochower had 27 years' experience as a college teacher and was entitled to tenure under state law. Under this statute, appellant may be discharged only for cause, and after notice, hearing, and appeal. The Court of Appeals of New York, however, has authoritatively interpreted 903 to mean that 'the assertion of the privilege against self incrimination is equivalent to a resignation.' Dismissal under this provision is therefore automatic and there is no right to charges, notice, hearing, or opportunity to explain.

The Supreme Court of New York, County of Kings, concluded that appellant's behavior fell within the scope of 903, and upheld its application here."

On appeal the US Supreme Court reversed and remanded the judgment of the New York Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed for the New York Civil Liberties Union by Osmond K. Fraenkel and Emanuel Redfield

Ephraim London argued the cause and filed a brief for appellant.

Daniel T. Scannell argued the cause for appellee. With him on the brief were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy.

"The problem of balancing the State's interest in the loyalty of those in its service with the traditional safeguards of individual rights is a continuing one. To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities...

Here the Board, in support of its position, contends that only two possible inferences flow from appellant's claim of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that in order to avoid answering the question he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury. Either inference, it insists, is sufficient to justify the termination of his employment. The Court of Appeals, however, accepted the Committee's determination that the privilege had been properly invoked and it further held that no inference of Communist Party membership could be drawn from such a refusal to testify. It found the statute to impose merely a condition on public employment and affirmed the summary action taken in the case. With this conclusion we cannot agree.

At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as 'one of the most valuable prerogatives of the citizen'... The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury...

With this in mind, we consider the application of 903. As interpreted and applied by the state courts, it operates to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive...

This is not to say that Slochower has a constitutional right to be an associate professor of German at Brooklyn College. The State has broad powers in the selection and discharge of its employees, and it may be that proper inquiry would show Slochower's continued employment to be inconsistent with a real interest of the State. But there has been no such inquiry here. We hold that the summary dismissal of appellant violates due process of law..."

The US Supreme Court reversed and remanded the judgment of the New York Court of Appeals.

Justice Vote: 5 Pro vs. 4 Con

  • Clark, T. Pro (Wrote majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Frankfurter, F. Pro (Joined majority opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Reed, S. Con (Wrote dissenting opinion)
  • Burton, H. Con (Joined dissenting opinion)
  • Minton, S. Con (Joined dissenting opinion)
  • Harlan, J. Con (Wrote dissenting opinion)

The ACLU, as amicus, urged reversal of the New York Court of Appeals' judgment; the Supreme Court reversed and remanded in a 5-4 vote, giving the ACLU an apparent win.