The Fifth Amendment: A Crucial Case

...The Court does not directly take this line, but makes peripheral use of it in evaluating the evidence...

...The denouement in the Slochower case is very instructive...

...In 1941, only one witness had identified Slochower under oath as a member of the Communist party...

...Since in the majority opinion this is 110 evidence whatever of guilt...

...This is the policy followed in some other institutions...

...It asserts that "summary dismissal of appellant in the circumstances of this case violates due process of law," not only because "in practical effect the questions asked [under Section 903] are taken as confessed and made the basis of the charge" (which, as we have seen, is utterly false) but also because the plea of privilege might have been made in error...

...In summary, then, we are justified in concluding that the ethics of honest teaching and its relevance to professional qualifications were completely ignored in the 5-to-4 decision of the Supreme Court in the case of Slochower v. Board of Higher Education...

...Slochower was discharged under this provision...

...Slochower might not have been aware of what he was doing and its consequences...

...Even the American Association of University Professors, than whom there is no more jealous watchdog of the rights of teachers, acknowledges that the mere invocation of the privilege is sufficiently compromising to justify inquiry into a teacher's good faith...

...Slo-chower's claim that he was protesting the denial to him of due process turned out to be merely sucker bait for the liberals...

...There is then a possibility of his involvement in activities subversive of education itself, or otherwise indicative to an important degree of his unfitness to teach...

...Whenever the sudden reversal or withholding of evidence raises the ugly suspicion that a teacher may be a perjuror, the professional responsibility is all the more apparent...

...This is the plain meaning of Section 903...

...Slochower did not blunder into this situation, but coolly chose, with advice of counsel, what appeared the lesser evil to the danger either of admitting past membership in the Communist party despite his previous sworn denial or of persisting in that denial...

...If to bring home an awareness of the consequences of what one is doing is the purpose of a hearing, it may be argued by some that Slochower had his hearing before the committee which questioned him...

...his hook The Fifth Amendment Today is explicitly cited...

...Justice Clark actually says: "It appears that neither the Subcommittee nor Slochower was aware that his claim of privilege would ipso facto result in his discharge and would bar him permanently from holding any position either in the city colleges or in the city government...

...To use a homely analogy, it is as if a teacher said to his class, "No student who fails to hand in a term paper can pass the course...

...Nor is Justice Harlan alone in recognizing the logic of the case...

...In Slochower's case, the weight of the presumption against him was increased by the existence of uncontested sworn testimony...

...in a separate, devastating dissent, Section 903 does not apply to a witness no matter how incriminating his answers are...

...If the truth of this consideration is basic to the opinion, then the latter can hardly be sustained, for the record clearly shows that both Slochower and-the Subcommittee were quite aware of the relevance of Section 903 and what the consequences of a resort to the privilege would be...

...In its statement on "Academic Freedom and Tenure in the Quest for National Security," the AAUP declares: "The administration of colleges and universities should, of course, take note of indications of the possible unfitness of faculty members...

...If someone were to argue...

...The influence of Dean Erwin N. Griswold of Harvard is apparent here...

...On this charge there is no statute of limitations...

...And not alone on discussion...

...The opinion lends itself to this misinterpretation for reasons developed above—the confusion between propositions (1) and (3...

...Witnesses before the Congressional committees investigating subversion, when confronted by evidence of their Communist activities, have waved the Slochower decision in the face of committee members with a militant self-righteousness which would be ludicrous if it were not so effective in choking off legitimate inquiry...

...The majority opinion fails to distinguish between two unrelated propositions: (1) The invocation of the privilege against self-incrimination warrants a common-sense inference of guilt...

...In a statement to the press, Slochower flatly denied any connection with the Communist party but, when subpoenaed on November 7, 1940, refused to answer any questions...

...How much graver is the moral significance of the plea of privilege where evidence such as exists in the Slochower case is at hand...

...This time, he willingly swore under oath that he was not and never had been a_membet of the Communist party...

...3) "The invocation of the privilege warrants a conclusive inference of guilt or perjury.'" which it properly denies with rhetorical fervor...

...As in other instances of possible unfitness, preliminary inquiry into this possibility is warranted and can become a duty...

...Part of the documentary evidence was that his Communist party membership book was No...

...The hearing and trial before the Board of Higher Education, which Slochower had demanded for five years, was set for February 27, 1957...

...In opposition to the Committee's application Slochower submitted a sworn affidavit to the court on December 24, 1940 in which he affirmed in part: "I state to the court upon my oath that I am not and was not a member of the Communist party of the U.S.A...

...An analysis of the opinion in this case seems to me not only timely but essential...

...It is based only on the premise that an employe who refuses to cooperate with the public authorities who employ him, in a relevant inquiry into his official conduct, is 110 longer qualified for public service...

...Worse, he had not kept faith with his own students...

...The Court could have tried to sustain its position In arguing that even under 12) ever...

...If legal provisions made it unfeasible, the Board itself should have extended him the opportunity to appear before it and invited a representative committee of the faculty to participate...

...The same illusions which flourished when members of the Communist party were invoking it have been revived in some quarters in conjunction with its invocation by labor racketeers...

...But he has undermined public confidence in his role as a public official, for which the penalty is disqualification and dismissal...

...The student might have been ill or unaware of the rule or have experienced a family tragedy...

...On February 28, 1941, Slochower was again summoned before the Rapp-Coudert Committee...

...How, then, can he be removed under Section 903 merely on the basis of an inference of guilt...

...It interprets the sec-lion as punishing a witness for taking the privilege on the ground that this is evidence of the witness's guilt...

...To many this seemed a clear confession that he had been a member despite his previous denials...

...It then mistakenly denies (1...

...As President Gideonse urged at the time, Slochower should have been tried on the charge of conduct unbecoming a teacher, not dismissed for violating Section 903...

...he would be arguing like Justice Clark and his colleagues about Section 903...

...But Section 903 is not based 011 the assumption that anyone resorting to the privilege is guilty of a crime...

...As Justice Harlan points out...

...and (2) under Section 903, the only relevant aspect of the invocation of the privilege, considered as a basis of dismissal, is that it constitutes a refusal to cooperate on the part of an employe, whether innocent or guilty, with his public employers...

...On that day, rather than face the testimony of five witnesses, supported by documentary evidence, who according to counsel for the Board were prepared to testify "that Slochower lied when he previously testified under oath that he was never a member of the Communist party" (New York Times, February 28, 1957), Slochower resigned...

...He should have been given every opportunity by the Board to explain before a faculty committee of his peers how his conduct could be reconciled with decent standards of professional ethics...

...Justice Harlan is on impeccable ground in asserting "that it is the exercise of the privilege itself which is the basis for the discharge, quite apart from any inference of guilt...

...Shortly after his discharge, Slochower distributed a mimeographed farewell letter to his students at Brooklyn College justifying his use of the privilege on the ground that he did not wish to become an informer and "name names...

...Student X fails to hand in his paper and therefore fails the course...

...Nonetheless, it seems to me to have been an error to act against Slochower on the basis of Section 903 and therewith wrap the basic ethical issue in legal technicalities...

...By 1952, there were at least five prepared to do so...

...The majority opinion lamentably confuses (1) and (2...

...it would be cruel and unjust 011 the part of a teacher if he refused to give the student an opportunitto explain why he failed to hand in his paper...

...First is its refusal to recognize the commonplace truth that there is a legitimate inference of guilt from the invocation of the privilege...

...It proceeds to substitute for (1) still another proposition...

...They cite Justice Clark's opinion as if it condemned any inference of guilt from the use of the privilege, not merely the inference which Dean Griswold now declares a commonplace truth, but an inference drawn from both the overwhelming, independent evidence that the witness is a member of the Communist party and his invocation of the privilege...

...Subsequently, in order to be eligible for promotion, he denied in a letter to the chairman of a faculty committee of Brooklyn College that he had ever been a member of the Communist party...

...His lawyer, contending that this violated the "due process" clause of the Fourteenth Amendment, lost every appeal except the final one...

...Nor, as his letter shows, did he anticipate a legal reversal of the decision...

...Slochower might not have understood what he was doing or its consequences...

...In 1940, Dr...

...The Court of Appeals held in ruling against Slochower that "the assertion of the privilege against self-incrimination is equivalent under Section 903 to a resignation...

...I have addressed myself to this decision with so much care because of the deplorable influence of its obiter dicta on the discussion of the Fifth Amendment...

...In 1952, he was questioned by a subcommittee of the Senate Judiciary Committee investigating subversive influences in the educational system...

...He cannot be removed under Section 903 even if in actual fact he is guilty and pleads guilty to any sin in the book—provided only he does not refuse to give testimony...

...Thereupon, an action to adjudge him in contempt was begun by the Committee...

...Analogously...

...One of the recent key decisions on the matter is Slochower v. Board of Higher Education...

...One would imagine it would be a point of honor for a teacher so impugned to rush forward to repudiate the inference, however slight, rather than plead the privilege against self-incrimination...

...His refusal to cooperate is not a crime nor does it imply that he has committed a crime...

...Secondly, the Court's reasoning concerning the meaning of Section 903 is clearly at fault...

...Conviction for perjury requires at least two witnesses...

...Attorneys for the Board of Higher Education moved for a review of the case on the ground that the opinion was based on a demonstrable error of fact...

...According to President Harry D. Gideonse of Brooklyn College in public testimony before the same Senate committee, Slochower in an interview with him had justified his 1952 refusal to answer questions about his past membership on the ground that it would lay him open to a charge of having committed perjury in 1941...

...This is not motivated by any sympathy for the racketeers but rather by a desire to preserve a certain appearance of consistency...

...This action against X is unjust because it is based 011 the inference that his failure to hand in the paper necessarily betokens lack of capacity to write a passing one, and since the inference is false the student should not be failed...

...His letter to his students emphatically welcomes these consequences and grounds his use of the Fifth Amendment in his reluctance to "name names...

...Section 903 was declared unconstitutional...

...Together with the four other justices who constituted the majority, he overlooked the fact that it is -the professional duty of a teacher to rebut any reflection upon his vocational qualifications, particularly when a question is raised as to whether he is a member of a conspiratorial group pledged to undermine standards of professional ethics...

...which is false...

...one has a right to 1 hearing or an opportunity for explanation or extenuation before suffering dismissal...

...not because it means that criminal guilt is inferred or established but only because of the act of non-compliance...

...It is one of the most intellectually confused opinions ever handed down in the history of the Court...

...Three things stand out in the majority opinion of the Supreme Court delivered by Justice Clark...

...The Court merely struck out the passage which revealed that it had not read or understood the record it was judging and reaffirmed its opinion...

...Reinstated, reimbursed to the tune of more than $40,000, he was suspended and charges preferred against him by President Gideonse "on the broad professional ground that untruthfulness and perjury are conduct unbecoming a member of a college staff...

...Finally, the majority opinion in the Slochower case is noteworthy for its cavalier treatment of the evidence before it...

...Section 903 of the Charter of the City of New York provides, among other things, that a city employe who wilfully invokes the privilege before any body authorized to conduct an inquiry shall therewith forfeit his position in the city's employ...

...If a faculty member invokes the Fifth Amendment when questioned about Communism, or if there are other indications of past or present Communist associations or activities, his institution cannot ignore the possible significance for itself of these matters...

...Although it is a pity that this was not done in the interest both of educational enlightenment and of the best faculty procedures, it does not affect the character of the Court's decision...

...It is not confused because, of the principle behind the ruling, viz., that automatic discharge without a hearing as a consequence of pleading the privilege is a violation of due process (a principle which I have always defended), but because of its obiter dicta, the character of its reasoning, and the evidence it ignored...

...The opinion is written as if the main issue turns on the validih of (3) and of automatic dismissals based on (3...

...Harry Slochower was identified in sworn testimony before the New York State Rapp-Coudert Committee as a member of the Communist party cell at Brooklyn College...

...His underground party name, according to the same testimony, was Flint...

...Justice Clark seems firmly convinced that, because the resort to the privilege does not establish a conclusive confession of guilt or a conclusive presumption of perjury, it warrants no inference of guilt whatsoever...

...He denied under oath that he was a present member of the Communist party...

...Although the statute of limitations precluded a criminal prosecution in 1952 for perjury if the latter had been committed in 1941, it would not bar an action before the Board of Higher Education on the charge of conduct unbecoming a teacher...

...In this discussion, the authority of the Supreme Court is sometimes cited in defense of the view that, because the use of the Fifth Amendment is not conclusive evidence of guilt, it therefore establishes no presumption of guilt whatsoever...

...When asked whether he had ever been a member of the Party, and specifically whether he had been a member in 1940 or 1941, which he had previously denied under oath, he refused to reply on the ground that his truthful testimony would tend to incriminate him...