First Amendment Library
ADVANCED SEARCHCONNELL v. HIGGINBOTHAM et al., 403 U.S. 207 (1971)
- Argued:
- November 19, 1970
- Decided:
- June 07, 1971
- Decided by:
- Burger Court, 1970
- Action:
- Affirmed and reversed (or vacated) in part. Petitioning party received a favorable disposition.
See Opinion tab for full case information.
Concurring Opinion
William Douglas Potter Stewart Thurgood Marshall William Brennan
Dissenting Opinion
No opinions found
CONNELL
v.
HIGGINBOTHAM ET AL.
Supreme Court of United States.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA.
Sanford Jay Rosen argued the cause for appellant. With him on the brief were Tobias Simon and Melvin L. Wulf.
Stephen Marc Slepin argued the cause for appellees. With him on the brief were Rivers Buford, Jr., and James W. Markel.
PER CURIAM.
This is an appeal from an action commenced in the United States District Court for the Middle District of Florida challenging the constitutionality of §§ 876.05-876.10 of Fla. Stat. (1965), and the various loyalty oaths upon which appellant’s employment as a school teacher was conditioned. The three-judge U. S. District Court declared three of the five clauses contained in the oaths to be unconstitutional,[*] and enjoined the State from conditioning *208 employment on the taking of an oath including the language declared unconstitutional. The appeal is from that portion of the District Court decision which upheld the remaining two clauses in the oath: I do hereby solemnly swear or affirm (1) “that I will support the Constitution of the United States and of the State of Florida”; and (2) “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence.”
On January 16, 1969, appellant made application for a teaching position with the Orange County school system. She was interviewed by the principal of Callahan Elementary School, and on January 27, 1969, appellant was employed as a substitute classroom teacher in the fourth grade of that school. Appellant was dismissed from her teaching position on March 18, 1969, for refusing to sign the loyalty oath required of all Florida public employees, Fla. Stat. § 876.05.
The first section of the oath upheld by the District Court, requiring all applicants to pledge to support the Constitution of the United States and of the State of Florida, demands no more of Florida public employees than is required of all state and federal officers. U. S. Const., Art. VI, cl. 3. The validity of this section of the oath would appear settled. See Knight v. Board of Regents, 269 F. Supp. 339 (1967), aff’d per curiam, 390 U. S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (1967), aff’d per curiam, 390 U. S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (1969), aff’d per curiam, 397 U. S. 317 (1970).
The second portion of the oath, approved by the District Court, falls within the ambit of decisions of this Court proscribing summary dismissal from public employment without hearing or inquiry required by due process. Slochower v. Board of Education, 350 U. S. 551 *209 (1956). Cf. Nostrand v. Little, 362 U. S. 474 (1960); Speiser v. Randall, 357 U. S. 513 (1958). That portion of the oath, therefore, cannot stand.
Affirmed in part, and reversed in part.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, concurring in the result.
I agree that Florida may require state employees to affirm that they “will support the Constitution of the United States and of the State of Florida.” Such a forward-looking, promissory oath of constitutional support does not in my view offend the First Amendment’s command that the grant or denial of governmental benefits cannot be made to turn on the political viewpoints or affiliations of a would-be beneficiary. I also agree that Florida may not base its employment decisions, as to state teachers or any other hiring category, on an applicant’s willingness vel non to affirm “that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence.”
However, in striking down the latter oath, the Court has left the clear implication that its objection runs, not against Florida’s determination to exclude those who “believe in the overthrow,” but only against the State’s decision to regard unwillingness to take the oath as conclusive, irrebuttable proof of the proscribed belief. Due process may rightly be invoked to condemn Florida’s mechanistic approach to the question of proof. But in my view it simply does not matter what kind of evidence a State can muster to show that a job applicant “believe[s] in the overthrow.” For state action injurious to an individual cannot be justified on account of the nature of the individual’s beliefs, whether he “believe[s] in the overthrow” or has any other sort of belief. “If *210 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 . . . .” Board of Education v. Barnette, 319 U. S. 624, 642 (1943).
I would strike down Florida’s “overthrow” oath plainly and simply on the ground that belief as such cannot be the predicate of governmental action.
MR. JUSTICE STEWART, concurring in part and dissenting in part.
The Court upholds as clearly constitutional the first clause of the oath as it comes to us from the three-judge District Court: “I will support the Constitution of the United States and of the State of Florida . . . .” With this ruling I fully agree.
As to the second contested clause of the oath, “I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence,” I would remand to the District Court to give the parties an opportunity to get from the state courts an authoritative construction of the meaning of the clause. If the clause embraces the teacher’s philosophical or political beliefs, I think it is constitutionally infirm. Baird v. State Bar of Arizona, 401 U. S. 1, 9-10 (concurring opinion); Board of Education v. Barnette, 319 U. S. 624, 642; Cantwell v. Connecticut, 310 U. S. 296, 303-304. If, on the other hand, the clause does no more than test whether the first clause of the oath can be taken “without mental reservation or purpose of evasion,” I think it is constitutionally valid. Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U. S. 154, 163-164. The Florida courts should, therefore, be given an opportunity to construe the clause before the federal courts pass on its constitutionality. *211 See Fornaris v. Ridge Tool Co., 400 U. S. 41, 43-44; Reetz v. Bozanich, 397 U. S. 82, 85-87; Railroad Comm’n v. Pullman Co., 312 U. S. 496, 498-501.
The Supreme Court of Florida has explicitly held that the various clauses of the oath are severable. Cramp v. Board of Public Instruction, 137 So. 2d 828, 830-831.
NOTES
[*] The clauses declared unconstitutional by the court below required the employee to swear: (a) “that I am not a member of the Communist Party”; (b) “that I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party”; and (c) “that I am not a member of any organization or party which believes in or teaches, directly or indirectly, the overthrow of the Government of the United States or of Florida by force or violence.”
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COMMUNIST PARTY OF INDIANA et al. v. WHITCOMB, GOVERNOR OF INDIANA, et al., 414 U.S. 441 (1974)
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KLEINDIENST, ATTORNEY GENERAL, et al. v. MANDEL et al., 408 U.S. 753 (1972)
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SOCIALIST LABOR PARTY et al. v. GILLIGAN, GOVERNOR OF OHIO, et al., 406 U.S. 583 (1972)
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COLE, STATE HOSPITAL SUPERINTENDENT, et al. v. RICHARDSON, 405 U.S. 676 (1972)
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BAIRD v. STATE BAR OF ARIZONA, 401 U.S. 1 (1971)
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In re STOLAR, 401 U.S. 23 (1971)
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LAW STUDENTS CIVIL RIGHTS RESEARCH COUNCIL, INC., et al. v. WADMOND et al., 401 U.S. 154 (1971)
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COLE, BOSTON STATE HOSPITAL SUPERINTENDENT, et al. v. RICHARDSON, 397 U.S. 238 (1970)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
BRYSON v. UNITED STATES, 396 U.S. 64 (1969)
- Related Sub-Topic:
- Loyalty and Security
SCHNEIDER v. SMITH, COMMANDANT, UNITED STATES COAST GUARD, 390 U.S. 17 (1968)
- Related Sub-Topic:
- Loyalty and Security
UNITED STATES v. ROBEL, 389 U.S. 258 (1967)
- Related Sub-Topic:
- Loyalty and Security
WHITEHILL v. ELKINS, PRESIDENT, UNIVERSITY OF MARYLAND, et al., 389 U.S. 54 (1967)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
DOMBROWSKI et al. v. EASTLAND et al., 387 U.S. 82 (1967)
- Related Sub-Topic:
- Loyalty and Security
KEYISHIAN et al. v. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK et al., 385 U.S. 589 (1967)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
UNITED STATES v. LAUB et al., 385 U.S. 475 (1967)
- Related Sub-Topic:
- Loyalty and Security
TRAVIS v. UNITED STATES, 385 U.S. 491 (1967)
- Related Sub-Topic:
- Loyalty and Security
DENNIS ET AL. v. UNITED STATES, 384 U.S. 855 (1966)
- Related Sub-Topic:
- Loyalty and Security
GOJACK v. UNITED STATES, 384 U.S. 702 (1966)
- Related Sub-Topic:
- Loyalty and Security
ELFBRANDT v. RUSSELL et al., 384 U.S. 11 (1966)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
DEGREGORY v. ATTORNEY GENERAL OF NEW HAMPSHIRE, 383 U.S. 825 (1966)
- Related Sub-Topic:
- Loyalty and Security
ALBERTSON et al. v. SUBVERSIVE ACTIVITIES CONTROL BOARD, 382 U.S. 70 (1965)
- Related Sub-Topic:
- Loyalty and Security
UNITED STATES v. BROWN, 381 U.S. 437 (1965)
- Related Sub-Topic:
- Loyalty and Security
ZEMEL v. RUSK, SECRETARY OF STATE, et al., 381 U.S. 1 (1965)
- Related Sub-Topic:
- Loyalty and Security
AMERICAN COMMITTEE FOR PROTECTION OF FOREIGN BORN v. SUBVERSIVE ACTIVITIES CONTROL BOARD, 380 U.S. 503 (1965)
- Related Sub-Topic:
- Loyalty and Security
VETERANS OF THE ABRAHAM LINCOLN BRIGADE v. SUBVERSIVE ACTIVITIES CONTROL BOARD, 380 U.S. 513 (1965)
- Related Sub-Topic:
- Loyalty and Security
STANFORD v. TEXAS, 379 U.S. 476 (1965)
- Related Sub-Topic:
- Loyalty and Security
APTHEKER et al. v. SECRETARY OF STATE, 378 U.S. 500 (1964)
- Related Sub-Topic:
- Loyalty and Security
BAGGETT et al. v. BULLITT et al., 377 U.S. 360 (1964)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
RABINOWITZ et al. v. KENNEDY, ATTORNEY GENERAL, 376 U.S. 605 (1964)
- Related Sub-Topic:
- Loyalty and Security
KREZNAR et al. v. UNITED STATES., 376 U.S. 221 (1964)
- Related Sub-Topic:
- Loyalty and Security
GREENE v. UNITED STATES, 376 U.S. 149 (1964)
- Related Sub-Topic:
- Loyalty and Security
YELLIN v. UNITED STATES, 374 U.S. 109 (1963)
- Related Sub-Topic:
- Loyalty and Security
WHEELDIN et al. v. WHEELER, 373 U.S. 647 (1963)
- Related Sub-Topic:
- Loyalty and Security
GIBSON v. FLORIDA LEGISLATIVE INVESTIGATION COMMITTEE, 372 U.S. 539 (1963)
- Related Sub-Topic:
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SILBER v. UNITED STATES, 370 U.S. 717 (1962)
- Related Sub-Topic:
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HARTMAN v. UNITED STATES, 370 U.S. 724 (1962)
- Related Sub-Topic:
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GRUMMAN v. UNITED STATES, 370 U.S. 288 (1962)
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RUSSELL v. UNITED STATES, 369 U.S. 749 (1962)
- Related Sub-Topic:
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NOSTRAND et al. v. LITTLE et al., 368 U.S. 436 (1962)
- Related Sub-Topic:
- Loyalty and Security
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- Related Sub-Topic:
- Loyalty and Security
CRAMP v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, 368 U.S. 278 (1961)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
CAFETERIA & RESTAURANT WORKERS UNION, LOCAL 473, AFL-CIO, et al. v. MCELROY et al., 367 U.S. 886 (1961)
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- Loyalty and Security
RALEY et al. v. OHIO, 360 U.S. 423 (1959)
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- Loyalty and Security
UPHAUS v. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE, 360 U.S. 72 (1959)
- Related Sub-Topic:
- Loyalty and Security
BARENBLATT v. UNITED STATES, 360 U.S. 109 (1959)
- Related Sub-Topic:
- Loyalty and Security
VITARELLI v. SEATON, SECRETARY OF THE INTERIOR, et al., 359 U.S. 535 (1959)
- Related Sub-Topic:
- Loyalty and Security
SCULL v. VIRGINIA ex rel. COMMITTEE ON LAW REFORM AND RACIAL ACTIVITIES, 359 U.S. 344 (1959)
- Related Sub-Topic:
- Loyalty and Security
FLAXER v. UNITED STATES, 358 U.S. 147 (1958)
- Related Sub-Topic:
- Loyalty and Security
BEILAN v. BOARD OF PUBLIC EDUCATION, SCHOOL DISTRICT OF PHILADELPHIA, 357 U.S. 399 (1958)
- Related Sub-Topic:
- Loyalty and Security
LERNER v. CASEY et al., CONSTITUTING THE NEW YORK CITY TRANSIT AUTHORITY, 357 U.S. 468 (1958)
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- Loyalty and Security
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- Related Sub-Topic:
- Loyalty and Security
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- Related Sub-Topic:
- Loyalty and Security
SACHER v. UNITED STATES, 356 U.S. 576 (1958)
- Related Sub-Topic:
- Loyalty and Security
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- Related Sub-Topic:
- Loyalty and Security
WATKINS v. UNITED STATES, 354 U.S. 178 (1957)
- Related Sub-Topic:
- Loyalty and Security
SWEEZY v. NEW HAMPSHIRE, BY WYMAN, ATTORNEY GENERAL, 354 U.S. 234 (1957)
- Related Sub-Topic:
- Loyalty and Security
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- Lower Court Ruling:
- Overruled (in part)
- Related Sub-Topic:
- Loyalty and Security
SERVICE v. DULLES et al., 354 U.S. 363 (1957)
- Related Sub-Topic:
- Loyalty and Security
COLE v. YOUNG et al., 351 U.S. 536 (1956)
- Related Sub-Topic:
- Loyalty and Security
COMMUNIST PARTY OF THE UNITED STATES v. SUBVERSIVE ACTIVITIES CONTROL BOARD, 351 U.S. 115 (1956)
- Related Sub-Topic:
- Loyalty and Security
SLOCHOWER v. BOARD OF HIGHER EDUCATION OF NEW YORK CITY, 350 U.S. 551 (1956)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
PENNSYLVANIA v. NELSON, 350 U.S. 497 (1956)
- Related Sub-Topic:
- Loyalty and Security
PETERS v. HOBBY et al., 349 U.S. 331 (1955)
- Related Sub-Topic:
- Loyalty and Security
BARSKY v. BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK, 347 U.S. 442 (1954)
- Related Sub-Topic:
- Loyalty and Security
LINEHAN et al. v. WATERFRONT COMMISSION OF NEW YORK HARBOR et al., 347 U.S. 439 (1954)
- Related Sub-Topic:
- Loyalty and Security
NATIONAL LABOR RELATIONS BOARD v. DANT ET AL., DOING BUSINESS AS DANT & RUSSELL, LTD., 344 U.S. 375 (1953)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
WIEMAN et al. v. UPDEGRAFF et al., 344 U.S. 183 (1952)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
CARLSON ET AL. v. LANDON, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE, 342 U.S. 524 (1952)
- Related Sub-Topic:
- Loyalty and Security
HARISIADES v. SHAUGHNESSY, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, 342 U.S. 580 (1952)
- Related Sub-Topic:
- Loyalty and Security
ADLER ET AL. v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, 342 U.S. 485 (1952)
- Lower Court Ruling:
- Overruled
- Related Sub-Topic:
- Loyalty and Security
DENNIS ET AL. v. UNITED STATES, 341 U.S. 494 (1951)
- Related Sub-Topic:
- Loyalty and Security
GARNER ET AL. v. BOARD OF PUBLIC WORKS OF LOS ANGELES ET AL., 341 U.S. 716 (1951)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
NATIONAL LABOR RELATIONS BOARD v. HIGHLAND PARK MANUFACTURING CO., 341 U.S. 322 (1951)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
JOINT ANTI-FASCIST REFUGEE COMMITTEE v. McGRATH, ATTORNEY GENERAL, ET AL., 341 U.S. 123 (1951)
- Related Sub-Topic:
- Loyalty and Security
GERENDE v. BOARD OF SUPERVISORS OF ELECTIONS OF BALTIMORE, 341 U.S. 56 (1951)
- Related Sub-Topics:
- Loyalty and Security, Loyalty Oath
OSMAN ET AL. v. DOUDS, REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD, 339 U.S. 846 (1950)
- Related Sub-Topic:
- Loyalty and Security
AMERICAN COMMUNICATIONS ASSN., C. I. O., ET AL. v. DOUDS, REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD, 339 U.S. 382 (1950)
- Related Sub-Topic:
- Loyalty and Security
UNITED STATES EX REL. KNAUFF v. SHAUGHNESSY, ACTING DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION, 338 U.S. 537 (1950)
- Related Sub-Topic:
- Loyalty and Security
HERNDON v. LOWRY, SHERIFF, 301 U.S. 242 (1937)
- Related Sub-Topic:
- Loyalty and Security
DE JONGE v. OREGON, 299 U.S. 353 (1937)
- Related Sub-Topic:
- Loyalty and Security
PIERCE et al. v. UNITED STATES, 252 U.S. 239 (1920)
- Related Sub-Topic:
- Loyalty and Security
SCHAEFER v. UNITED STATES, 251 U.S. 466 (1920)
- Related Sub-Topic:
- Loyalty and Security
ABRAMS et al. v. UNITED STATES, 250 U.S. 616 (1919)
- Related Sub-Topic:
- Loyalty and Security
FROHWERK v. UNITED STATES, 249 U.S. 204 (1919)
- Related Sub-Topic:
- Loyalty and Security
DEBS v. UNITED STATES, 249 U.S. 211 (1919)
- Related Sub-Topic:
- Loyalty and Security
SUGARMAN v. UNITED STATES, 249 U.S. 182 (1919)
- Related Sub-Topic:
- Loyalty and Security
SCHENCK v. UNITED STATES, 249 U.S. 47 (1919)
- Related Sub-Topic:
- Loyalty and Security
Topics: Freedom of Speech & Expression, Loyalty and Security, Loyalty Oath
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