Education and the Fifth Amendment

No person shall be held to answer for a capital or other infamous crime unless on presentation of indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property betaken for public use without just compensation.

--Fifth Amendment to the Constitution of the United States.

By Jnne first of this year, over 100 university teachers had declined to answer questions posed by three Congressional committees on grounds of the Fifth Amendment to the Constitution of the United States. Fifty-four had been dismissed or suspended from their jobs. Others were on probation or under official censure. All, according to polls of public opinion, had received the tacit condemnation of their fellow citizens.

Leading the investigations were the Senate Internal Security Subcommittee, headed until November by Senator Pat McCarran (D-Nev.) and by Sen. William E. Jenner (R-Ind.) afterwards; and the House Un-American Activities Committee, headed by Rep. Harold Velde (R-Ill.). Both group had full subpoena power, both had sent large research staffs in the field for months before they called witnesses. Both confronted witness with large stores of information on Communist and front activity during the last fifteen years. In almost every state in the union, state legislative committees had started or were preparing similar investigations.

Faced with this onslaught, both professors and governing boards of the nation's universities faced the problem of proper use of the Fifth Amendment, which had become the only legal defense against the Committee's questions.

Moral Issue

Many considered it a moral issue, and believed any testimony inferred their sanction to the committee's proceedings. Some felt that they had a perfect legal right to remain silent, for if they once spoke witnesses would be produced by the committee's to corner them on grounds of perjury. Even among the foremost legal minds in the nation there was no agreement. Morris L. Ernst, in an explanation of the problems confronting those who testified, wrote the following to the CRIMSON:

"Practically no one at any college will tell on a boy seen cheating in an examination. It is quite different if a student sees another student stealing money out of a desk drawer. There the reluctance to tell has substantially evaporated. Where did your sympathies lie in the West Point cheating exposure? My guess is it was with the boys who cheated rather than with the boys who told. In Hollywood's great contribution to culture--the gangster pictures--the audience without doubt is emotionally against the moll who squeals and is with the mob. In brief, the cop who spits never arrest a spitter. By and large, a human being only tells on those who violate the folkways of his own group.

"This is the essence of the dilemma under the Fifth Amendment. Outside of a few people, often represented by attorneys following the communist line, I suggest that practically all of the people who pleaded the Fifth Amendment were willing to tell everything they knew about the communist membership except that they had an understandable reluctance to tell on those people who had gotten out of the movement and were leading unmolested, decent, pro-democracy lives. We have taught our children not to be tattle-tales, but now we are putting on a public parade of witness to testify against their-upbringing. This parade may keep up for sixty years. 700,000 Americans, usually between the ages of 18 and 23, joined the communist movement in the United States and left the movement. At the rate of 1000 witnesses a year, the game can keep up until about 2500 AD. It is about time some professor did some writing on this confusion of our national ethic.

Evaporation into Limbo

"One other point: I was brought up under the belief that this precious constitutional protection applied so that no one need incriminate or degrade himself. The word "degrade" has evaporated into limbo, although it still survives in our sister culture in Great Britain. As the law now stands, despite some wonderful writing by judges in the United States Supreme Court over the decades, if any person is asked by a committee--"did you commit embezzlement or sodomy or any other anti-social act thirty years ago, there is no honest constitutional legal excuse for not making answer. The constitutional protection would not apply where the statute of limitation has run against the offense. The witness must be in danger of a prosecution not barred by the statute of limitations.

"With the tawdry practices of our fast evaporating daily press, a press monopolistic in many area, the injury done to a human life under such a jurisprudence can be as great, or greater, than the danger of a criminal prosecution. The District Attorney is not the only instrument for creating preventable hurt."

Travelling from city to city the investigators followed a hit-and-run tactic that made it difficult for universities to formulate any unified policy on what to do with professors who used the Fifth Amendment. In the initial confusion of November through January, some schools immediately suspended such teachers, others judged each case on its own merits. Not until March 24 were the thirty-four universities of the country who form the American Association of Universities able to agree on a single policy statement. This statement denied the privilege of tenure to Communist Party members and said the use of the Fifth Amendment by a teacher means "he must bear a heavy burden of proof as to his fitness to continue teaching." The AAU's legal interpretation of the Fifth Amendment followed pretty much the view first clarified by two Harvard Law School professors in a letter to the CRIMSON on January 13. Zechariah Chafee, Jr. and Arthur E. Sutherland said:

"...The underlying principle to remember in considering the subject is the duty of the citizen to cooperate in government. He has no option to say, "I do not approve of this Grand Jury or that Congressional Committee; I dislike its members and its objectives; therefore I will not tell it what I know." He is neither wise nor legally justified in attempting political protest by standing silent when obligated to speak. The citizen is ordinarily required, when summoned, to give testimony to a Court, legislative committee or other body vested with subpoena power and if he refuses to do so he is punishable. Subpoena power has proved necessary to the conduct of government: it is the correlative of the guarantee to an accused in the Sixth Amendment that he shall have compulsory process for obtaining witnesses in his favor.'

"To this general duty of the citizen the privilege against self-incrimination is an extraordinary exception. The federal constitution prohibits all federal officers from requiring anyone to give testimony tending to prove that he is guilty of a crime. Criticized adversely by some because it makes police work difficult, this immunity is justified by others because it keeps government officers active in investigating the facts of offense, rather than relying on 'grilling' suspects.

"There are several current misconceptions about the testimonial privilege to remain silent. The witness is not the ultimate judge of the tendency of an answer to incriminate him. He can be required, on pain of contempt punishment, to disclose enough to show a real possibility that an answer to the question will tend, rightly or wrongly, to convict him of a crime.

Embarrassment Not Excuse

"Mere embarrassment is not an excuse: the witness must be subjecting himself to some degree of danger of conviction of a criminal offense. There are refinements of this subject beyond the scope of this letter. For example, the immunity under the Fifth Amendment of a witness before a federal agency does not ordinarily extend to exoneration from compulsory self-incrimination of offenses under State law; but recently some lower federal courts have refused to find witnesses guilty of contempt of the 'Kefauver committee' when they refused to answer questions tending to convict them of certain State crimes that committee was investigating. A sense of sportsmanship toward suspected associates is not an excuse: the Fifth Amendment grants no privilege to protect one's friends. If a man feels that he has a persona code compelling this reticence, he must pay for his scrupple by standing the punishment society prescribe.

"Difficult questions arise when a witness is asked if he now is or ever has been a member of the Communist party. The Internal Security Act of 1950 provides 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of...this section or of any other criminal statute.' Whether this refers only to federal statutes or was intended to include state statutes as well is not clear, but the section tends to militate against immunity when the question is asked with reference to a federal offense. Certainly the fact that disclosure of present or past association with the Communist party will cause trouble for the witness with his church, his lodge, his union, his employer, or his university, does not excuse him from answering questions about it when subpoenaed before a competent body....

"A privileged refusal to testify is not an admission of guilt for the purposes of criminal prosecution. Its effect on popular opinion is, of course, not within constitutional control. A refusal may mean only that the witness has innocently got into a situation where he is apparently though not actually guilty of a crime; but fairly or not, the fact that he feels it necessary to refuse information to a government agency on the ground that it will tend to incriminate him inevitably casts a shadow on his reputation.

"First. It is not only a legal requirement but also a principle of wisdom and good citizenship for an individual called before a court, grand jury, or a legislative investigating committee to answer questions frankly and honestly. The constitutional privilege to keep silent is an exception to the legal obligation to testify; but even when the legal privilege is available, there are times when it is best not exercised.

"Second. There may be an occasional person in a situation of special difficulty. He should remember that the privilege against self-incrimination is a complex and technical subject. If, feeling that he may be called as a witness, he attempts to decide for himself the legality or the wisdom of asserting a privilege to remain silent, he is as ill-advised as the layman in serious pain who doses himself with home remedies. Any prospective witness who is doubtful about the desirability of answering questions should feel that it is essential for him to obtain the professional advice of a lawyer, to whom he makes prompt and full disclosure of the facts."

Justification for Dismissal

There were universities like Rutgers which used the Chafee-Sutherland thesis to justify immediate dismissal. Harvard, in its dealings with professors who used the Constitutional privilege, seemed to agree in theory, but the Harvard Corporation adopted a policy of judging each case of its own qualifications, and it was nor until May 20 that it issued a statement on Associate Professor of Physics Wendell H. Furry who had first used the Amendment before Velde's committee on February 25.

"We deplore the use of the Fifth Amendment by a member of our faculty," wrote the Harvard Corporation. "In the first place we think full and candid testimony by all teachers would dis-

close that there is little Communist activity today in educational institutions. But more important, the use of the Fifth Amendment is in our view entirely inconsistent with the candor to be expected of one devoted to the pursuit of truth. It is no excuse that the primary purpose of its use is to protect one's friends, or to express one's feelings that Congressional committees are by-passing the Constitutional safeguards of due process of law, or to avert a danger of prosecution for perjury in case one's testimony should later be contradicted by the false testimony of others. Furthermore, since we are not conducting a criminal trial, we will not shut over eyes to the inference of guilt which the use of the Fifth Amendment creates as a matter of commonsense. Hence, the use of the Fifth Amendment by a member of our teaching staff within the critical field of his possible domination by the Communist Party, makes it necessary in our judgement for us to inquire into the full facts..."

Food For Sensation

For it is obvious, although all responsible groups have agreed that the investigations themselves have done more harm than good to American universities, that the use of the Fifth Amendment is food for sensational journalism, which damns an instructor's university as well as the man himself. In Furry's testimony, for an instance, the physics professor stated that he felt the committee had no right to inquire into his beliefs. Yet, he was willing to go into detail about his views against fascism. The tremendous concern with academic freedom as an abstract doctrine often caused men to tacitly implicate a university in their refusal to answer questions. The rationale of those who used the Fifth Amendment was best stated in a letter to the CRIMSON from New York lawyer Leonard B. Boudin on March 19. "...In refusing to cooperate with the Velde and Jenner committees, the witnesses are asserting their constitutional right to freedom of speech, belief, conscience and assembly. The Supreme Court has not consented to hear such First Amendment claims in recent cases involving congressional investigations. That is not a reason for failing to assert rights which the individual citizen believes that he possesses.

Technical View

"From a technical point of view, a witness who relies exclusively upon the First Amendment may not avoid a committee citation for contempt. Hence, so many witnesses in recent years have relied upon the Fifth Amendment to the United States Constitution, which states that persons may not be required to act as witnesses against themselves. It is particularly appropriate to assert the privilege here since it had its origins in the protection of political and religious dissidence in the Puritan period in England...

"The only complete legal defense to these committee hearings rests, therefore, in the Fifth Amendment. This Amendment has historically been recognized as a method of protecting the innocent from false accusations and tyrannical prosecutions. The courts have repeatedly pointed out how even in cases of ordinary crime, innocent persons may be trapped into incriminating admissions. But in political cases the possibilities of entrapment are multiplied ad infinitum..."

The Way Out

There was yet another view, however, which enabled a witness to hold his moral convictions about incriminating others without using the Fifth Amendment. First used before the Jenner Committee by Irving Goldman, who teaches anthropology at Sarah Lawrence College, it can best be called "calculated contempt." To Goldman and his counsel, Arthur Garfield Hays, the best way to reconcile one's conscience without harming his college was speaking openly about personal activities, refusing to testify about others.

Goldman admitted he was a member of the Communist Party, which he left in 1942. He would not answer any questions about his associates, not on grounds of the Fifth Amendment, but purely on moral grounds. The trustees of Sarah Lawrence backed Goldman, while the Jenner Committee failed to even cite him for contempt.

The board, in its statement, said that Goldman had based his action on a personal standard of fair dealing, not on any intentional of defying the committee. The board also urged another instructor, Paul Aron, to speak freely about himself before Jenner's group, but Aron Stood on the Fifth Amendment. On April 8 he resigned, before the board had decided on any action. "The resignation is not in any way the result of a request or of pressure by the President or Board of Trustees of the College," he wrote in his letter to President Harold Taylor. "Nor is it by reason of the fact that in my appearance before the Senate Sub-Committee on Internal Security I used the Fifth Amendment." Aron explained that "purely personal reasons" had forced him to resign, but this was due to his placing himself in an untenable position in the small college. Aron's case should clarify the fact that a teacher who keeps his affiliations secret must find it difficult to remain in an educational institution which requires frankness and trust between its members.

At Harvard, before the Jenner Committee on May 8, David Hawkins, on a year's appointment at the University, also used the principal of calculated contempt. Hawkins admitted to membership in the Communist Party from 1938 to 1948, but like Goldman refused to talk about others.

Part of the testimony went like this:

"I order and direct you to answer the question," said Senator Jenner.

"I'm sorry sir," answered Hawkins, "I must refuse."

"Well, you have counsel here."

"I have counsel, yes sir."

"And you have rights under the Fifth Amendment. Are you exercising those rights?"

"I am claiming no privilege under the Fifth Amendment."

Personal Standard

Hawkins added that he had no need of consulting his counsel. As with Goldman, the Committee has taken no further action, and it seems as though a witness who speaks honestly and fearlessly about himself but refuses to pull others into the investigations will secure public approval. As Mr. Ernest has pointed out, the sympathies of the American people do not lie with the informer.

From a compilation, then, of the instructors who have appeared before the committees we must conclude that complete silence is not the answer for those who testify. There are, of course, some cases in which use of the Fifth Amendment may be applicable. But in the great majority it has not helped either the universities or the professors who have used it.

At Harvard, Leon J. Kamin, Daniel Fine, Furry, and Holon Wendler Dean Markham invoked the amendment. Although none were suspended or fired, all the facts that were not told the committees were released by the Harvard Corporation when it announced its decision. Few instructors have been dismissed because they told the truth about past associations in another time and in another climate of opinion