Hughes v. Board of Higher Education

Breitel, J. Petitioner Hughes, a dismissed professor at Hunter College, an institution of higher education maintained by the City of New York under the jurisdiction of the board of higher education, appeals from an order at Special Term denying his application for a hearing pursuant to the provisions of section 12-a of the Civil Service Law. The order should be reversed and the petitioner granted a hearing in accordance with the provisions of that section. — 183 — Petitioner, during the years 1939 to 1941 or 1942, while a teacher at Hunter College, was a member of the Communist party. This he admits. He claims, however, that in 1941 or 1942, in good faith, he ceased to be a member of the party. He also claims that at no time during his membership was he aware of the subversive character or of the activities of the Communist party, or that he did or was required to engage in any subversive activities. Nevertheless, he contends that he was dismissed for present membership in the party. Section 12-a of the Civil Service Law, enacted in 1939, provides: “ No person shall be appointed to any office or position in the service of the state or of any civil division or city thereof, nor shall any person presently employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college, or any other state educational institution who: * * * “ (c) Organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence, or by any unlawful means; “ (d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility”. (L. 1939, ch. 547, as amd. by L. 1940, ch. 564.) (Emphasis supplied.) Petitioner Hughes, together with two fellow professors, was brought to trial on charges preferred by a special committee of the board of higher education. The charges were tried by a trial committee consisting of the Honorable Charles H. Tuttle, as chairman, John E. Conboy and Mary S. Ingraham. The — 184 — charges were sustained and Hughes was dismissed. It is on the basis of this dismissal that this judicial proceeding was brought. Hughes was charged with neglect of duty and conduct unbecoming a member of the staff. The specifications under these charges were as follows: In Specification I it was charged that Hughes both became a member of the Communist party in' 1938 and continued thereafter to be a member of the Communist party; that at all times during the period of his membership in that party, it advocated the overthrow of the Government by force and violence, “ and exacts from its members the duty and obligation to adhere to a body of doctrines, practices and principles that are incompatible with, and antagonistic to the ideals, purposes, and established standards of conduct of a member of the college staffs under the jurisdiction of the Board of Higher Education”. Specific reference was made to section 12-a of the Civil Service Law and the Feinberg Law (L. 1949, ch. 360, as ámd. by L. 1953, ch. 681). Specification II charged Hughes with failing to co-operate in answering questions with respect to knowledge of the activities and members of a Communist party group, particularly one at Hunter College. Specification III charged Hughes, together with the other two professors, of having entered into a common plan to violate the board’s resolution of September 28, 1953. This specification need not be considered, for Hughes’ dismissal was predicated only on findings by the trial committee that he was guilty under Specifications I and II. Because the overall charge relates to neglect of duty and conduct unbecoming a member of the staff, respondent board of higher education contends that Hughes was dismissed, not under section 12-a of the Civil Service Law, but under section 6206 of the Education Law (often referred to as the “ Tenure Law”). It is therefore further argued that Hughes is not entitled to avail himself of the procedure provided in section 12-a of the Civil Service Law. The first issue, therefore, with which the court is confronted is whether section 12-a of the Civil Service Law is applicable to the dismissal of Hughes. If it is, he was entitled to make the application under that section for a judicial hearing. If, on the other hand, Hughes’ dismissal was pursuant to section 6206 of the Education Law, presumably without relation to section — 185 — 12-a of the Civil Service Law, then Hughes’ remedies are said to be exclusively administrative, including an appeal to the State Commissioner of Education, and subject only to review under article 78 of the Civil Practice Act. Subdivision 10 of section 6206 of the Education Law provides that persons having tenure under the section may be removed for one or more of the following reasons: ‘ ‘ a. Incompetent or inefficient service; b. neglect of duty; c. physical or mental incapacity; d. conduct unbecoming a member of the staff ”. Concededly, Hughes was subject to the section, and the general charge was framed in its terms. Nevertheless, it is concluded that Hughes was not dismissed exclusively under the provisions of section 6206, but also under section 12-a of the Civil Service Law. While the overall charges were in terms listed in section 6206, Specification I expressly referred to and grounded the alleged misconduct on section 12-a. Moreover, the acts described are those proscribed in section 12-a. The trial committee so viewed the specification. At page 4 of its report it said as follows: ‘ ‘ Specification I also called attention to the enactment by the Legislature in 1939 of Section 12-a of the Civil Service Law and in 1949 of the Feinberg Law; to the adoption by the Board of Regents on July 15, 1949 of certain Rules (including Subdivision 2 of Section 254 thereof) in pursuance of the Feinberg Law; and to the Regents’ subsequent listing on September 24, 1953, of the Communist Party of the United States of America, and the Communist Party of the State of New York, ‘ as subversive organizations within the meaning of Section 12-a of the Civil Service Law ’ ”. At page 5 of the trial committee report it appears that the answer of Hughes to the overall charge and specifications joined issue under the grounds for dismissal set forth in section 12-a. In its findings, so denominated, with respect to Specification I, the trial committee rested upon the language and violations set forth in that section. It concluded by saying, at page 100 of its report, that, referring to Hughes: ‘1 His conduct was also unbecoming a member of the staff within the meaning of the Tenure Law and Section 12-a of the Civil Service Law; and constituted statutory disqualification for continued employment as defined in Section 12-a of the Civil Service Law” (emphasis supplied). . A further circumstance compels the conclusion that Hughes was tried under section 12-a. as well as section 6206 of the — 186 — Education Law. He moved preliminarily to dismiss the charges because procedural rules of the board of higher education applicable to charges under section 6206 of the Education Law had not been followed. The motion was denied on the ground that the Feinberg Law (referring to section 3022 of the Education Law), in conjunction with section 12-a of the Civil Service Law, mandated on the board of higher education proceedings for the dismissal and declaration of ineligibility of one, who, like Hughes, was charged with membership in a subversive organization. The conclusion that Hughes was also tried under section 12-a becomes even clearer when it is noted that the trial committee relied on the Feinberg Law for. the presumptions contained therein. These presumptions rise from the listing of the Communist party as a subversive organization, and from the stated rule that “ membership in any such organization included in such listing * * * shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state. ” (§ 3022.) The Feinberg Law was enacted to implement section 12-a, insofar as personnel in public schools and colleges is concerned. (Thompson v. Wallin, 301 N. Y. 476; Adler v. Board of Educ., 342 U. S. 485.) The presumptions were used in Hughes’ case and were evidently considered necessary. It is important to observe that neither the Feinberg Law (Education Law, § 3022) nor the Tenure Law (Education Law, § 6206) define substantively, subversive organizations, membership in which constitutes a disqualification for a teaching position. That definition is found only in section 12-a of the Civil Service Law. The historical reason is that before the adoption of section 12-a it was debatable whether political advocacy, however subversive — or even membership in a political organization which advocated such subversive viewpoint — without a showing of an overt act of subversion committed by the individual, constituted valid ground for dismissal or declaration of ineligibility. It was even debatable whether such subversive advocacy or membership could be considered unbecoming conduct (but see Penal Law, § 161, the model for § 12-a). That is why the Legislature expressly included educational personnel in section 12-a. It was clearly unwilling at that time to rely alone on the Tenure Law, which was a much older statute. Consequently, there would be at least no express statutory ground for removal, in the absence of proof that membership in the — 187 — Communist party or other subversive organizations is related to competency in teaching, unless dependence is had upon section 12-a. It is evident that in Hughes’ case the board of higher education chose to rest the dismissal on clear and express statutory grounds. It probably did not have to do so, but in doing so it invoked section 12-a. A still further telling element is that the trial committee and the board of higher education declared Hughes ineligible to receive public employment of any kind. Such declaration could only be authorized by section 12-a of the Civil Service Law. Section 6206, the Tenure Law, authorizes dismissal, but does not, as a matter of law, mandate general ineligibility, as does section 12-a. (riven, then, that Hughes was dismissed and declared ineligible under section 12-a of the Civil Service Law, as well as section 6206 of the Education Law, the next question is whether he is entitled to a judicial hearing under that section. The board of higher education argues that the judicial hearing provided for in section 12-a is permissive and not mandatory. It argues further that, in view of the very full trial and hearing, with every opportunity to offer and confront witnesses and evidence that Hughes had, it was discretionary with the court at Special Term whether another hearing, this time judicial in character, should be granted. We should first distinguish the kind of judicial review that administrative action is subject to under article 78 of the Civil Practice Act. Under that article, review may be had for a variety of errors of law that may have occurred in the making of an administrative determination. More importantly, it permits review to determine whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination and, if there was such proof, whether it was sufficient (Civ. Prac. Act, § 1296). No such issue nor any such ground for review is involved or suggested in this case. The question, nevertheless, is whether, under section 12-a, Hughes is entitled to a judicial hearing — an independent judicial rehearing and finding — because of his dismissal and the declaration of ineligibility under the statute. The legislative and judicial history yields a univocal answer that he is. Section 12-a was enacted in 1939. When it was first introduced as a bill in the Legislature there was no provision for judicial review (Assembly Int. No. 1321, Print Nos. 1413, 2094). The bill was then amended to provide for a full judicial rehearing, as — 188 — is now contained in the law, but with the dismissed employee being entitled to bring the proceeding within one year rather than within four months, as it is now (Assembly Int. No. 1321, Print No. 2475). It was amended again, to eliminate the provision for a full judicial rehearing, but there was substituted therefor provision for limited review under article 78 of the Civil Practice Act (Assembly Int. No. 1321, Print No. 2659). When the bill reached the Senate, however, it was amended once again to reinstate the provision for a full judicial rehearing in place of the limited review under article 78, but limiting the time in which the proceeding might be brought to four months (Senate Bee. No. 591, Print No. 2726). This is the form in which the bill was adopted and became law. There was, therefore, the clearest consideration by the Legislature of three alternatives: (1) No provision for review; (2) Provision for limited review under article 78; and (3) Provision for judicial rehearing. The last was the alternative selected. In approving the bill, the Governor said: “ The bill before me contains effective judicial safeguards against any possible abuse. Any dismissal or determination of ineligibility can be passed on by the courts. The State Supreme Court may be petitioned for a hearing. And at such a hearing testimony must be taken in open court, a full opportunity for cross examinations must be given, the chance to present evidence provided. Finally, the bill places the burden of proof, not upon the civil service employee, but upon the official or government agency which brings the charges. In a democracy we must, in the last analysis, repose faith in the judiciary. This bill brings each case before the courts. The courts must observe and must prevent the invasion or abridgement of the proper exercise of the civil liberties bestowed upon every citizen by the Constitution of the United States and by the Constitution of New York State. I am confident that by this court procedure no harassment or injustice can result.” (Public Papers of Governor Herbert H. Lehman [1939], p. 348.) The Court of Appeals, in sustaining the constitutionality of the Feinberg Law, noted that the listing of subversive organizations by the Board of Begents was only after inquiry, and after such notice and hearing as may be appropriate. The listing then becomes the basis for a prima facie case against one who had been a member of such organization, and who continues as a member subsequent to such listing. This is so even though the teacher or other educational employee had not — 189 — been a party to the listing proceeding. Moreover, the Feinberg Law provided a further presumption, namely, that past membership was presumed to continue. But, the court found due process because, under section 12-a of the Civil Service Law, the public employee — a teacher, too — who is charged thereunder could offer evidence in the judicial proceeding to rebut the prima facie evidence. Speaking through Judge, later Chief Judge, Lewis, it said: “ Thus the phrase ' prima facie evidence of disqualification ’, as used in the statute, imports a hearing at which one who seeks appointment to or retention in a public school position shall be afforded an opportunity to present substantial evidence contrary to the presumption sanctioned by the prima facie evidence for which subdivision 2 of section 3022 makes provision. Once such contrary evidence has been received, however, the official who made the order of ineligibility has thereafter the burden of sustaining the validity of that order by a fair preponderance of the evidence. (Civil Service Law, § 12-a, subd. [d].) Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by the section of the statute last cited above. In that view there here arises no question of procedural due process. Beading the statute in that way, as we do, we cannot say there is no rational relation between the legislative findings which prompted the enactment of the Feinberg Law and the measures prescribed therein to safeguard the public school system of the State.” (Thompson v. Wallin, 301 N. Y. 476, 494, supra.) Later, when the Feinberg Law was before the Supreme Court of the United States that court, in sustaining its constitutionality, quoted from our Court of Appeals the language above set forth, and concluded: 1 ‘ 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 ”. (Adler v. Board of Educ., 342 U. S. 485, 496, supra.) In the Thompson case, the Court of Appeals affirmed simultaneously the decisions of the Second and Third Departments of the Appellate Division in two related cases (Lederman v. Board of Educ. of City of N. Y., 276 App. Div. 527, and Matter of L’Hommedieu v. Board of Regents, 276 App. Div. 494). In Matter of L’Hommedieu, the Appellate Division had commented (p. 501): “ It is to be noted that the provisions in the Feinberg Law have the effect of giving added protection to persons in the State public school system who might be charged, — 190 — under subdivision (c) of section 12-a of the Civil Service Law, with being a member of any society or group of persons, which advocates the overthrow of the Government by force, violence or any unlawful means.” The court went on further to say (p. 502): “Full and complete court review of any determination of the Board of Regents listing an organization, and of any determination of a board of education finding a teacher disqualified under the Feinberg Law, is available.” In the Lederman case, similar reliance for compliance with due process* was placed upon the provisions of section 12-a which entitle the dismissed employee, including a teacher, to a judicial hearing, with the burden on the whole case placed on the one preferring the charges. It is evident, then, that in this area of disciplinary action and the control of subversive activity the Legislature has provided an extraordinary safeguard. That safeguard requires a judicial hearing and a judicial finding in addition to the administrative remedies. Unlike the review which obtains under article 78, which serves to oversee the correctness of an administrative determination to a limited degree, the safeguard found in section 12-a is not satisfied with less than a judicial hearing and finding. For this the Legislature may have had cogent reason. In the first place, dismissal for being a member of a subversive organization involves stigmatization to a degree approaching, if in fact not equal to, that of treason. Moreover, under section 12-a, dismissal mandates general ineligibility for any public employment or office. That is a consequence rarely following dismissal from public employment or office, as a matter of law, except for conviction of felony. (Of. Penal Law, § 1823; but see Civil Service Law, § 14, subd. 4, where conviction for crime or dismissal for misconduct constitutes a basis for discretionary exclusion of applicants for positions in the civil service.) There may still have been further reason for distinguishing between an administrative determination that results in dismissal because of incompetency and unbecoming conduct and that which results only from activities in behalf of, or membership in, a subversive organization. Where incompetency or unbecoming conduct is — 191 — involved, the administrative agency is presumably expert, qualified by knowledge and experience, in making its findings, which should not be lightly disturbed in judicial review. Where, however, the determination relates to an issue which does not. necessarily fall within the expertness of the administrative agency, it does not follow that the finding of the administrative agency is entitled to a rating of greater respect than one which may be obtained in court. It is not difficult to understand, therefore, why the legislative power, in this most delicate area, would invoke the mandatory use of a court hearing, embracing as it does the professional judge, the open court, the rules of evidence, and the broad scope of appellate review associated generally with judicial proceedings. Thus, it is not material under section 12-a that the administrative agency may have had more than sufficient evidence before it to sustain its finding that Hughes had never withdrawn in good faith from the Communist party, as he claimed. He is, nevertheless, entitled to a judicial hearing and finding. With respect to Specification II, namely, Hughes’ failure to co-operate in making frank disclosure of his activity in the Communist party or of his membership, that is not before us. With regard to that phase of the matter, he has chosen to take his appeal to the State Commissioner of Education. And that is proper, for such misconduct, if established, relates to his competency and his conduct as a member of the staff, and does not involve a conclusive finding of ineligibility to hold any public office or employment. The phase of the case, however, relating to Specification II raises some special problems. The specification and the finding of misconduct under it are governed by section 6206, and not by section 12-a. As to this specification and finding, no judicial hearing has been requested nor would such an application lie under section 12-a. Instead, Hughes is pursuing his appeal from the finding thereunder to the State Commissioner of Education. Should the commissioner affirm the finding, Hughes will be dismissed, just as finally as if his dismissal depended on section 12-a. There would, however, be this difference — he would not be rendered ineligible, as a matter of law, from holding any public office or employment. Consequently, this proceeding would not become academic, no matter what happened in the administrative appeal. On the other hand, it would not seem that Hughes is entitled to a stay of the order of dismissal, as also provided in section 12-a pending the judicial proceeding, — 192 — insofar as it depends on Specification II. Although, he would be entitled to a mandatory stay to the extent that his dismissal is effected under section 12-a. But, that does not present the court with an insuperable obstacle. Hughes can be granted a qualified stay, which would have no practical effect so long as his dismissal under Specification II remains unreversed. In obtaining a judicial hearing, however, Hughes is not entitled to raise all the issues he poses in his petition. The only proper issue, of those he raises, is whether Hughes, in fact and in good faith, severed his relations or whether he has retained membership in the Communist party after its listing as subversive by the Board of Regents pursuant to the Feinberg Law. The other issues raised by Hughes in his petition are merely arguments directed to the provisions of the Feinberg Law or assertions that the board of higher education failed to prove elements of the charges against Hughes, for which the board was entitled to rely on the presumptions provided in the Feinberg Law. Those presumptions are expressly covered in the statute and have been held valid in the Thompson and Adler cases (supra). Because the Feinberg Law implements section 12-a, insofar as personnel in public schools and colleges is concerned, they will continue to be available to the board in this judicial proceeding. This is so despite the rule provided in section 12-a that the burden of proof in sustaining the dismissal— that is, the burden of proof on the whole case — is “ upon the person making such dismissal or order of ineligibility.” There are, of course, many situations in the law where the party having the burden of proof, nevertheless, has available to him rebuttable presumptions of fact. Accordingly, the order of Special Term should be reversed and the petition for a hearing granted pursuant to section 12-a of the Civil Service Law, together with a limited stay in accordance with the views expressed herein. Footnotes [*] Reference is not made to the Thompson, Adler, Lederman and L’Hommedieu cases in order to show that the due process clause requires a full judicial hearing. That is generally not so. Those cases are noted because section 12-a itself was viewed by the courts as requiring such a hearing. Once having so concluded, it was then clear to the courts that the Feinberg Law satisfied due process.