N.Y. Courts Ponder Feinberg Law Act Would Bar Teachers Belonging To Groups on Subversive List

New York state and city officials have for some time worried about the presence of Communists in New York schools and colleges. The Rapp-Coudert committee of the State Legislature gained headlines a few years ago when it conducted a controversial investigation of various "subverstive" teachers in the Empire State. And since 1934 virtually all teachers in public and private institutions have been compelled by State law to swear allegiance to the Federal and New York constitutions.

The biggest uproar of all, however, has taken place in the past year over a new piece of legislation. Passed in Albany in March, 1949, the Act is designed to bar from public schools and colleges all teachers who belong to groups advocating the violent overthrow of the Government.

Feinberg Law

The Act is popularly known as the Feinberg Law, and is named after Benjamin F. Feinberg, former majority leader of the State Senate, who introduced the measure on March 10, 1949. The bill was supposed to enforce Section 12-a of the New York Civil Service Law, which prohibited employment in public services of persons preaching forceful overthrow of persons preaching forceful overthrow of the government.

Feinberg's measure directed the State Board of Regents to draw up a list of "subversive" organizations (those advocating overthrow) and to set regulations for disqualifying teachers belonging to these groups.

Despite heated opposition to the bill by groups of citizens and teachers, the Feinberg measure became law just before the close of the 1949 legislative session. In the Assembly, the vote was 122 to 25; in the Senate the vote was 41 to 14.

Regulations

On July 1, 1949, the law went into effect, and the Board of Regents prepared its regulations. The Board directed school authorities in each city to designate one or more officials to report on the loyalty of all teachers. If the officials discovered any evidence that a teacher belonged to a "subversive" group, this would "constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system."

The accused teacher could then get a hearing, with "all rights to a fair trial" guaranteed, at which he could try to disprove the evidence against him.

(The Commissioner of Education added that "hearsay statements" should be rejected by reporting officials, but that "treasonable or subversive acts or statements outside the school are as much a basis for dismissal as are similar activities in school or in the presence of school children.")

Summons

But the Regents did not issue a list of "subversive" groups although it summoned five organizations--the Communist Party, the Socialist Workers Party, the International Workers of the World, and the Nationalist Party of Puerto Rico--to a hearing.

On September 13, the Regents' rules were refined further by William Jansen, New York City superintendent of schools. Jansen published a complex reporting system; principals were to testify on their teachers, assistant superintendents on principals, and so on up to the apex: the city's Board of Education.

Courts Intervene

Three days later the Regents were supposed to bring out their list of "subversive" groups, but meanwhile the courts intervened, thus preventing publication of the Regents' list and also stopping school officials from preparing their loyalty reports.

The first court action was taken by a Supreme Court justice in Troy, who, upon the insistence of the Communist Party, issued a stay to the Regents and ordered them to show cause why they should not be permanently enjoined from enforcing the Feinberg Law. The New York City Teachers Union (C.I.O.) gained a similar stay against the city Board of Education from a Brooklyn justice of the Supreme Court.

While these stays kept the Feinberg Law inoperative, four groups prepared suits testing the law's constitutionality; officials of the state Communist Party; a group consisting of four New York school teachers, one former teacher, and one former Board of Education member; the New York Teachers Union, and a group of eight taxpayers.

The suits brought by the first two groups were decided on November 28, when Supreme Court Justice Harry E. Schirick of Albany ruled that the Feinberg Law was unconstitutional and permanently restrained the Board of Regents from enforcing it.

The issue, Judge Schirick said, was not whether or not there was a constitutional right to be a teacher, but whether or not the grounds for denying this right or privilege were constitutional. Schirick decided that the grounds were not constitutional for two reasons:

1. Since the law prescribed a finding of guilt (against the "subversive" groups) without judicial trial, it was a bill of attainder and thus invalid.

2. The law violated due process of law because; it was too vague, "a 'dragnet' which may enmesh anyone who agitates for a change of government"; it lacked provisions for judicial proof of individual membership in subversive groups; it set up a "presumption of (organizational) guilt"; and the law constituted 'guilt by association' with a vengeance."

A similar ruling was made by Brooklyn Supreme Court Justice Murray Hearn two weeks later in the suits brought by the Teachers Union and individual tax-payers. Hearn also voided the Feinberg Law and ordered the New York City Board of Education not to enforce it. His decision closely resembled Schirick's decision, but Hearn added the complaint that a teacher's "rights on appeal are ambiguous and essentially inadequate."

Sustains Law

Both the Communist and anti-Communist groups opposing the Feinberg law rejoiced in these two decisions, but the Appellate Division of the Supreme Court ended the celebrations three months later when it sustained the Feinberg law.

Judge Schirick's decision was reversed on March 8. The Third Department of the Appellate Division threw out the Communist Party suit on the grounds that it was "moot," with no personal rights affected. In the other suit, brought by present and former teachers, Judge Christopher Heffernan ruled that the objections to the Feinberg Law were invalid because "there is no constitutional right to be a teacher." He added that the Law protected teachers' rights by providing that the Board of Regents must hold hearings before drawing up lists of "subversive" groups.

Heffernan's decision went on: "We are not so naive as to accept as gospel the argument that a teacher who believes in the destruction of our form of government will not affect his students... The result may be accomplished by indirect, subtle insinuations; by what is left unsaid, as well as what is said."

Justice Hearn's December decision was also reversed in March, by the Second Department of the Appellate Division. Ruling only on the suit brought by eight taxpayers, Justice William B. Carswell asserted that there is "no constitutional right to be a public employee," and said that it was within the powers of the legislature to "protect the public service" from those who advocate forceful overthrow of the government.

Evidence Proper

As to the Feinberg Law itself, Judge Carswell noted that the conditions imposed and the classifications made "are reasonable," and said that the state was competent to use "prima facie evidence" in disqualifying teachers.

Groups testing the Law announced that they would appeal these decisions to New York's highest court, the Court of Appeals. The casts are now pending before that Court, and decisions are expected next Fall. Until that time, neither the Board of Regents nor the New York City Board of Education will take any further steps to put the Feinberg Law into practice.

Meanwhile, however, Superintendent Jansen in New York City has proceeded to take action against several teachers and employees in elementary and secondary schools, acting not under the Feinberg Law, but under earlier legislation outlawing "subversives" in public schools.

Trouble at Queens

Although Jansen's actions have not yet touched college or university teachers, several college students have been indirectly affected. Last month, four student's organizations at New York's Queens College invited Mrs. Celia Zitron, one of eight public school teachers suspended by Jansen and the Board of Education, to speak on the campus.

The presidents of the four city colleges then ruled that none of the eight teachers should be permitted to speak on the campus of any city college. The Queens College Faculty Committee made a similar ruling, on the grounds that permitting such speeches would not be consistent with the Board of Education's dismissal of the eight teachers.

In spite of these rulings, the four groups went ahead and held their meeting on May 19, drawing a crowd estimated at 250 persons. On the next day, John J. Theobald, president of Queens College, suspended the four groups--the Student Council, the Queens College Liberals, the Young Progressives, and the Committee for Democracy in Education