Theoretically, when the Supreme Court decides upon the constitutionality of a law, it does so on legal grounds. It is obvious however that the decisions involve acceptance or disapproval of doctrines, and that there is more than the Constitution at stake.
The Feinberg Law decision affords an excellent illustration of this. Passed two years ago by the New York legislature, the Feinberg Law directs the Board of Regents to deny subversives--those who advocate violent overthrow of the government--the privilege of teaching in New York's public schools. It provides that, after full hearings, the Board of Regents may declare an organization subversive, and may refuse any member of that organization a teaching position. The basis for this law is that employment as a teacher places limits on freedom of thought and expression.
Early this week the Supreme Court upheld the Feinberg Law, and by this decision approved the doctrine behind it. The fact that there were three justices dissenting is enough to cast suspicions on the law as a legal effort, but it is primarily with the doctrine behind the act that we take issue.
First, the law sets standards for hiring and firing teachers that are irrelevant to a person's fitness to teach. Instead of examining a teacher's ability to teach, his knowledge of the subject, delivery, impartiality, and other qualifications a teacher must have, the Board of Regents will investigate the company he keeps. In some cases where teaching involves interpretation of current affairs, economics, history and so forth, the teacher's beliefs may be important: no one committed to any extreme dogma is competent to teach such subjects. But this is not the rationale for the Feinberg Law. The Board of Regents will apply the guilt by membership theory to all teachers, whether it is relevant to their competency or not. So much for standards, then; there are deeper faults.
The Law supposedly guarantees all teachers under suspicion the right to a full hearing before the Board of Regents. But once an organization has been declared subversive--at a hearing where few teachers if any would have a chance to be heard--membership is enough to disqualify a teacher from further service. At hearings on individuals, the findings as to the subversive character of an organization cannot be reopened. This procedure ignores the possibility of someone joining for reasons of ignorance, social pressure, or any number of reasons that do not of themselves mark anyone as subversive. What is worse, past associations are valid evidence. Here there is not only the question of past indescretions, mistakes and so on, but the fact that an organization now considered subversive may have been the opposite at the time when the teacher was a member.
It has been argued that fair and competent administration would eliminate all these objections. No quality of administration, however, can make an unjust law just. It can only minimize the faults, and there is no assurance that the administrators will be either competent or impartial.
No matter how it is applied, the Feinberg Law will corrode the basic freedoms of opinion and expression. Many teachers will not join organizations that they fear have been or will be declared subversive, nor will they dare make statements that wander too far from the orthodoxy of the times. Even if the threat of expulsion is not very great, there is always the possibility of a hearing which is almost as unpleasant. Justice Douglas' dissent, which predicted a vertitable spy system growing up in the New York school system, is not so alarmist as it might appear at first reading, for if current affairs serve to magnify the public's present Red hysteria, accusations can be expected to increase by geometric progression.
Despite all the objections and predictions, the fact remains that the Feinberg Law is now effective. However, Justice Frankfurter's dissent, which is primarily concerned with legalistic arguments over procedure, suggests the possibility of another test case. The Feinberg Law is more complicated than a discussion of doctrines would indicate, and since it has yet to be invoked, its operation could very well produce another Supreme Court decision.
But this would take several years--if it takes place at all--which would give the Law plenty of chance to work its baleful ecects. Now that the Supreme Court has decided, the only sure way to relieve New York's public schools of this law is action by the state legislature. There has been plenty of time to ponder the implications of their bill, and perhaps now that its faults have been made clear by many sources, the state legislators will repeal it.