WEDNESDAY, JUNE 17, 1953

    TESTIMONY OF JOSEPH B. CAVALLARO, CHAIRMAN, BOARD OF HIGHER EDUCATION, CITY OF NEW YORK, ATTORNEY AND COUNSELOR AT LAW, MEMBER OF WINGATE & CULLEN, BROOKYLN, N.Y.

     Present: Senators Jenner and Smith.
     Present also : Robert Morris, subcommittee counsel, and Benjamin Mandel, director of research.

     The CHAIRMAN. The committee will come to order.
     To date in the Education hearings, 14 faculty members of the 4 colleges operated by New York City have invoked their privilege against incrimination under the Constitution in public session when asked about subcommittee evidence of their membership in the Communist Party. Others have done so in executive session and the subcommittee has evidence that still others have been, at least, members of the Communist Party. We have received evidence that City College had, in the early 1940's, a Communist unit of about 40 members, and Brooklyn College, a somewhat smaller unit. The indications are that the units in the other two colleges were still smaller.
     The subcommittee has taken testimony in open session of one member from each of these two larger units and is convinced of the sincerity of these two witnesses. The subcommittee also knows the work of the New York State Legislative Committee, popularly known as the Rapp-Coudert committee, using procedures basically similar to those used by this committee, was successful in causing an appreciable number of these Communists to be removed from the school system early in the 1940's. New York City has a law that if an employee, and the New York courts have held that a New York college teacher is an employee under the definition of that word, invokes his privilege finder the fifth amendment to the Constitution before a proper tribunal on any question that he is subject to suspension and dismissal.
     Thus, machinery exists in New York City for the summary dismissal of Communist teachers. The subcommittee has every reason to conclude that invocation of the fifth amendment on the part of a teacher in New York City colleges when asked about it is, practically speaking, tantamount to an acknowledgment of Communist Party membership. The records show that the teachers take all steps possible to

avoid being put into the position of invoking their privilege against self-incrimination and do so only when, faced with evidence, they convinced that a denial will result in their indictment for perjury. Our record is full of proof of this point.
     The subcommittee has noted that from the time that the R Coudert committee discontinued its hearings and filed its report in 1942, until the fall of 1952, when the Senate Internal Security Subcommittee commenced its hearings on this subject, that virtually no action was taken by the New York City authorities to remove cons teachers who were understood to be Communists.
     President Gideonse of Brooklyn College stressed the helplessness of a college president to contend with this problem in the absence of the work of a legislative or congressional committee. President Gideonse pointed out that during the 10 year period he had good reason to believe that certain members of his faculty were Communists but that he was powerless to take any action. He also pointed that when he would ask these teachers not under oath if they were in fact, Communists, they would deny Communist Party membership and leave him without remedy.
     However, when these same teachers were subpenaed before a legislative inquiry and asked under oath whether they were, in fact, or ever been members of the Communist Party, fearing indictment, they invoked their privilege. When they did this, the authorities were able to take some action which they have done with dispatch.
     The Internal Security Subcommittee has, in no sense, made a new investigation of the New York. City colleges. It has gathered t testimony and :.information that was available on the subject derived a general understanding of the situation. It has decided to invite Mr. Joseph Cavallaro, chairman of the Board of Higher Education of New York City, here this morning in order to determine to what extent it should proceed with this matter.
     Call Mr. Cavallaro.
     Mr. MORRIS. Will you stand and be sworn, Dr. Cavallaro.
     The CHAIRMAN. Do you swear the testimony given in this hey` will be the truth, the whole truth, and nothing but the truth,. you God ?
     Mr. CAVALLARO. I do.

TESTIMONY OF JOSEPH CAVALLARO, CHAIRMAN, BOARD OF HIGHER EDUCATION,  CITY OF NEW YORK, ATTORNEY AND COUNSELOR AT LAW, MEMBER OF WINGATE & CULLEN, BROOKLYN, N.Y.

     The CHAIRMAN. Give your full name to the committee.
     Mr. CAVALLARO.- Joseph B. Cavallaro, C-a-v-a-l-l-a-r-o.
          The CHAIRMAN. Where do you reside?
     Mr. CAVALLARO. 1337 East Fourth Street, Brooklyn, N. Y.
     The CHAIRMAN. What is your business or profession?
     Mr. CAVALLARO. I am an attorney at law duly admitted to practice in the State of New York.
     The: CHAIRMAN. You have no objection to being photographed or  the television lights being on when you testify?
     Mr. CAVALLARO. No, sir.

     The CHAIRMAN. Mr. Morris, will you proceed with the questioning of the witness.
     Mr. MORRIS. Doctor, would you tell us what degrees you hold.
     Mr. CAVALLARO. I hold the degree of bachelor of law, master of law, the bachelor from Fordham University, masters from. Brooklyn Law School, and an honorary degree of doctor of law conferred on me by St. John's University in Brooklyn.
     Mr. MORRIS. What is your present position with respect to the Board of Higher Education in New York?
     Mr. CAVALLARO. I was recently elected, on May 18, as its chairman.
     Mr. MORRIS. You have been since May 18 chairman of the New York City Board of Higher Education?
     Mr. CAVALLARO. I have.
     Mr. MORRIS. Were you prior to that time a member of the Board of Higher Education?
     Mr. CAVALLARO. Yes, sir; since 1946.
     Mr. MORRIS. Are you conversant with the activities of the Board of Higher Education from 1946 to date?
     Mr. CAVALLARO. I am.
     Mr. MORRIS. You are prepared to testify this morning on the basis of that experience?
     Mr. CAVALLARO. Yes, sir.
     Mr. MORRIS. How many colleges does the Board of Higher Education have supervision over?
     Mr. CAVALLARO. We have four colleges: Brooklyn College, Queens College, Hunter College, and City College, and allied schools.
     Mr. MORRIS. What do you mean by allied schools?
     Mr. CAVALLARO. Such as the business administration school, City College; the Hunter College elementary and high schools.
     Mr. MORRIS. How many teachers are included in these colleges?
     Mr. CAVALLARO. We have 3,503 teachers, including day and evening sessions.
     Mr. MORRIS. How many students are involved?
     Mr. CAVALLARO. Altogether, day and evening and adult education students, we have 67,800 students. I might point out, Mr. Morris, that in addition to that we have 82 employees on our administrative staff.
     Mr. MORRIS. Dr. Cavallaro, to date we have had 14 faculty members from your municipal colleges who refused to answer under oath whether or not they have been or are members of the Communist Party. The Senate committee has more such cases and wants to determine from you what steps the Board of Higher Education is taking or is planning to take in eliminating Communists from the colleges.
     Mr. CAVALLARO. Mr. Morris, I think that I can best answer that by stating the action which was taken by the board during the Rapp-Coudert investigation. At that time several resolutions were adopted which I should like to have placed on the record. The effect of these resolutions was to have the members of the teaching staff cooperate h the Rapp-Coudert committee.
     Resolutions were also adopted as to matters of policy in connection the investigations. Those resolutions are still on our books, as it were, and they are still in full force and effect. I should like to have

those placed in the record, particularly the resolutions of November18, 1940, and that of April 21, 1941.
     The CHAIRMAN. They may go into the record and become part of it.
     (The resolutions referred to follow :)

    The Board of High Education of the City of New York
     Whereas the Board of Higher Education on November 16, 1940, extends to the Joint Legislative Investigating Committee, also known as the Rapp-Coudert committee, its full cooperation and recorded its judgment that all members of the faculties of the municipal colleges should assist the committee in the accomplishment of its purposes; and
     Whereas the board at that time requested the Rapp-Coudert investigating committee to submit it to the board such of its minutes together with other data as it might deem proper; and
     Whereas the board on April 21, 1941, resolved that the board considered it sufficient cause for the dismissal of a staff member if he or she is proved to have advocated, advised, or taught the doctrine that the Government of the United States or of any State or any political subdivision thereof should be thrown or overturned by force, violence, or any unlawful means or to be
of any society or group of persons teaching or advocating such doctrine within the provisions of section 12a of the civil-service law;  (2) to have engage participated in activities disruptive of the educational system, or to have accepted the obligations, standards or discipline of any group which requires its members to act in the interests of any foreign national group, or to follow any predetermined policy or course of conduct; and
     Whereas as a result of evidence disclosed during the Rapp-Coudert investigation, charges of misconduct were preferred against some 33 members of the instructional and administrative staffs of the municipal colleges resulting in the dismissal of 19, the resignation of 11, and the separation from service of 2 others; and
     Whereas the board on September 22, 1952, resolved to extend to such Federal committees as may be investigating subversive activities or charges of subversive activities the board's full cooperation and the board recorded judgment that all members of the faculty of the municipal colleges will and should assist the committee or committees in the accomplishment of such purposes as the same may be stated in the resolution creating such committee committees; and
     Whereas the New York State Legislature adopted the Feinberg law (education law section 3022) in 1949 and extended it in 1953 to the faculty members and all other personnel and employees in any college or other institution of education owned or operated by the State or any political subdivision thereof, and the board of regents pursuant to said law. is conducting hearings toward the establishment of a list of subversive organizations; and
     Whereas the board, in the case of all 14 members of the faculty wh refused to testify before congressional committees under claim of the fifth amendment and self-incrimination, has recognized that these staff members under section 903 of the city charter as interpreted by the courts have automatically terminated their employment as members of the municipal college staffs; therefore be it
     Resolved,  That the board, in accordance with its consistent and developing record since 1940, request the special committee appointed by the chair under section 903 of the city charter, the Feinberg law and related matters, to consult with the administrative council composed of the four college presidents, report as soon as possible on policies and procedures to be followed in the premises and in implementation of the statutes and regents' rules.
     A true copy of excerpt from the minutes of the Board of Higher Education, June 15, 1953, calendar No. 171.

Page 1138

     Mr. CAVALLARO. I think those resolutions speak for themselves. I might say our board has acted most promptly and expeditiously whenever any members of the faculty or the staff were called to testify before this committee and invoked the fifth amendment. Immediately upon receipt of a transcript of their testimony, the president suspended these individuals. Their suspension was noted to the board and immediate action was taken at a meeting of the board following the receipt of the testimony.
     I might also add that under advice of the corporation counsel we automatically invoked section 903 of the Administrative Code which I should like to have included in the record as well.
     The CHAIRMAN. It may go into the record and become a part of it.
     (The material referred to follows: )

                                                                                                                BROOKLYN COLLEGE,
                                                                                                          OFFICE OF THE PRESIDENT,
                                                                                                      Brooklyn, N. Y., September 26, 1952.
Memorandum to: All Members of the Staffs :
From : President Gideonse.
     The following citations are hereby made available to all members of the Brooklyn College staffs :

     Failure to testify.–If any councilman or other officer or employee of the city hall, after lawful notice or process, willfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board, or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government, or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment, or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency. (Adopted 1938.)

EXCERPT FROM THE MINUTES OF PROCEEDINGS OF THE BOARD OF HIGHER EDUCATION, MAY 12, 1941
Calendar No. 1.-- Case of David Goldway
     Upon motion duly made, seconded, and carried, the following resolution was adopted :
     Whereas Mr. David Goldway, an assistant teacher in Townsend Harris High School, which is part of the educational institution conducted by this board which for fiscal purposes is an agency of the city within the meaning of the charter, refused in the course of the investigation being conducted by the legislative committee to sign a waiver of immunity; and
     'Whereas counsel for Mr. Goldway has informed this board verbally and in writing that Mr. Goldway did so refuse: Now, therefore
     Resolved, That this board hereby recognizes that Mr. David Goldway is no longer an employee of the board having by such refusal forfeited and terminated his position and tenure with and employment by this board; and the chairman the board is requested to notify Mr. Goldway, the college authorities and the fiscal officers of the city.

RESOLUTION ADOPTED BY THE BOARD OF HIGHER EDUCATION, SEPTEMBER 22, 1952

     Resolved, That the board extend to such Federal committees as may be instigating subversive activities or charges of subversive activities the board's full cooperation and that this board record its judgment that all members of faculties of the municipal colleges will and should assist the committee or

committees in the accomplishment of such purposes as the same may be stated in the resolution creating such committee or committees.                                                                                                                

     Mr. MORRIS. Will you just read for the benefit of the committee the exact wording of section 903?
     Mr. CAVALLARO. Gladly. It is entitled "Failure To Testify”:

     If any councilman or other officer or employee of the city shall, after lawful notice or process, willfully refuse or fail to appear before, any court or judge, any legislative committee, or any officer, board, or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government, or affairs of the. city on any county included within its territorial limits, or regarding the nomination or election, appointment, or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.

     Mr. MORRIS. You indicate the board also took action when a witness has invoked his constitutional privilege before a proper tribunal, but in the absence of that you were able to take no steps, were you?
     Mr. CAVALLARO. That is correct, sir. May I proceed further with my answer, please?
     I should like to also include as part of the record a resolution ado ed by our board on December 16, 1940 the, effect of which was to state to the members of' the teaching staff that they were required to cooperate with the legislative investigating committee.
     The CHAIRMAN. It may go into the. record and become a part of  the record.
     (The resolution referred to follows :)

     Upon motion duly made, seconded and carried, the following resolution was unanimously adopted :
     "Whereas the board of higher education, at its meeting of November 18, 1940, adopted the following resolution:
      "Resolved, That this board extend to the legislative investigating committee its full cooperation, and that this. board record its judgment that all members of the faculties of the municipal colleges will and should assist the committee in the accomplishment of the purposes stated in. the legislature's motion creating the committee; and
     "Whereas it has been reported in the public press that notwithstanding such resolution certain members of the staffs of the municipal colleges have refused to assist the committee and to testify: Now, therefore, be it
      "Resolved, That this board request the legislative investigating committee to submit to this board such of the minutes of the legislative investigating committee as it deems proper together with such statement with reference to the subject matter which the. legislative committee may deem proper and be it further
       "Resolved, That the chairman of this board be authorized to request from corporation counsel an opinion of the powers of the board in respect refusal to testify; and be it further
      "Resolved, That a copy of this resolution be made available to the staffs of  the colleges and to the public."
     A true copy of excerpt from the minutes of the Board of Higher Education, December 6, 1940, Calendar No. 1.

     Mr. CAVALLARO. Also a resolution dated January 1941 which I should like to have placed in the record and call your attention to some of the language in this resolution. It is quite a lengthy resolution, about 6 pages long.
     The CHAIRMAN. It may go into the record.
     (The resolution referred to follows:)

     Your committee was also directed by the board to examine all available facts rising out of the legislative investigation, and, if such facts warranted, to bring charges against members of the staff deemed to be guilty of conduct unbecoming members of the staff. Accordingly, one of the first matters that engaged our attention was the refusal of certain members of the instructional staffs to give testimony before a so-called one-man subcommittee of the investigating committee and the question of whether such refusal was a proper basis for charges.
     Your committee has carefully studied the grounds given for refusals to testify before the one-man subcommittee, and it would appear that these refusals are not based upon any alleged violation of a constitutional right but rather on the question of whether the legislature, in creating the investigating committee, had. intended the committee to have the power to proceed in this manner. We do not feel it necessary to discuss the legal question thus involved (which question is now before the courts) in view of other factors which we deem to be of governing importance.
     The first of these is the importance of the investigating power of the legislature as an instrument of social progress under our democratic form of government the legislature as the representatives of the people must have the power to investigate facts concerning matters of public interest and general welfare, and most certainly the public educational system is one of these. Without dwelling on this point, it is sufficient to point out that the power to conduct preliminary examinations of witnesses and documents has been widely used by legislative committees in recent years. Without such power it is obvious that any investigating committee would be seriously handicapped, and all preliminary questioning of witnesses would have to be done in the open hearings, resulting in the disclosure of material which might be either unnecessary or incapable of substantiation.
     A most important consideration, and one which more directly affects the board, arises out of the fact that those engaged in conducting on behalf of the State its educational system occupy, unlike private employees, positions of public trust, and as such, must remain accountable to the public. The professor or teacher in a public college is under a duty not only to give an accounting of his own activities, but to disclose in the public interest any information he may have affecting the welfare of the college or the public interest. Under the circumstances your committee believes that all connected with the institutions under the control of the board, teachers, administrative employees, and students alike, must disclose y information pertinent to the matters being investigated, regardless of any clinical rights they may have to refuse to do so, or else suffer appropriate disciplinary action.
     The legislature, earlier this month, took action (with only one dissenting vote) to correct any technical defect there may have been in the wording of its in joint resolution creating the investigating committee and to make perfectly clear its intent that it desired the investigating committee to have the power to conduct private hearings before a one-man subcommittee. We are advised by the legislative committee that its purpose and intent throughout has been to hold such hearings merely as a preliminary examination and investigation, in secret, and a preparation for ensuing public hearings. For the purpose of protecting the rights of witnesses testifying at such private hearings, the investigating committee has adopted the policy throughout of surrounding the testimony taken at its private hearings with the same safeguards as are accorded to the minutes of testimony taken before a grand jury, that is to say, such testimony will not be given publicity under any circumstances except in connection with public hearings of the investigating committee. We are also advised that steps are now being taken by the legislative committee to formalize these safeguards.

         In view of the clarification by the legislature of its intent with respect to the use of private hearings and the steps thus taken by the investigating committee itself to safeguard the rights of witnesses appearing at such hearings, we believe that many of the teachers who have heretofore refused to testify will find no further objection to doing so. Because of this possibility and inasmuch as the resolution of the board adopted November 18, 1940, expressing the wish of the board that all cooperation be given to the legislative investigating committee did not contemplate the present circumstances, and inasmuch as no steps taken to bring it officially to the attention of the staffs, your committee recommends that no disciplinary action be taken with reference to past failure to testify, but that appropriate steps be taken to acquaint the staffs, and all other under the jurisdiction of the board, of the desire of the board that they must testify or suffer the consequences. To that. end we recommend the following preambles and resolutions:
     "Whereas the legislature of the State in its 1941 session has indicated its intent that the joint legislative investigating committee proceed with private hearings before a one-man subcommittee, as heretofore; and
     "Whereas the joint legislative investigating committee has followed the policy of surrounding testimony taken at such private hearings with adequate guards for the protection of the witnesses appearing at such hearings and is now taking steps to formalize those safeguards: Now, therefore, be it,
     "Resolved, That this board direct all members of the staffs and all employees under its jurisdiction, to promptly obey all subpenas issued.b joint legislative investigating committee, and to give such testimony and other information as may be requested by the committee or any subcommittee thereof, and to otherwise cooperate with said committee to the best of their ability; and further
     "Resolved, That it will be the policy of the board to take disciplinary action, in accordance with law and its bylaws, for any failure to comply with the foregoing; and further
     "Resolved, That a copy of these preambles and resolutions be sent to the joint legislative investigating committee, and that the committee be requested, to advise the board of any persons under its jurisdiction failing to testify. before it; and further
     "Resolved, That a copy of these preambles and resolutions be posted in three prominent places in each institution or branch thereof under the jurisdiction of this board, and further that the administrator be directed to mail a copy of. these preambles and resolutions by registered mail to each of the members of the staffs who have heretofore failed to testify before the joint legislative committee or any subcommittee thereof, and to any others who may do so hereafter."

     It is not necessary to remind the board that its sole purpose is to maintain in the city colleges the highest standards of American education. The strength of democracy is an informed and critical citizenry which has been trained to reason and think for itself in the public schools and colleges. Full and free classroom discussion of social and political systems must be given every protection, but the board should not tolerate any indoctrination of propaganda, whether in the interest of communism, fascism, or any other ism inconsistent with or opposed to democracy. The teacher who has been given tenure in his position by the people has an unusual responsibility because he has been so safeguarded. He must be more meticulous than the average citizen and must not take advantage of his position under the slogan of academic freedom since academic freedom is meant to safeguard him only in his honest search for truth.
     Your committee is happy to report however, that apparently only an insignificant portion of the college faculties are involved in these matters now the subject of investigation. So far only 6 present members of the staff are alleged to have been members of the Communist Party, and all of these were appointed 7 or more years ago. There are 17 who have so far failed to testify, including the first 6 above mentioned. Thus numerically, while others may be Involved, we are dealing with less than 1 percent of the total faculty personnel. Our confidence in the overwhelming majority of the faculty remains undisturbed. It is important to note that Senator Condert, in his affidavit submitted to the court in connection with the contempt proceedings, makes the following statement;
     "In justice to the vast majority of students and faculty members at Brooklyn College I wish to add that according to the testimony, which I fully believe, such activities were confined to a relatively small group of students and faculty

Page 1142

members exercising, through use of such Communist tactics, a disruptive influence wholly disproportionate to their numbers, and that the overwhelming majority of the students and faculty members of Brooklyn College are not. only thoroughly out of sympathy with the Communist Party and its aims and objectives, but sincerely deplore and have constantly resisted the efforts and tactics of the Communist Party at said college.

     (Mr. Ira A. Hirschmann, the third member of the special committee was familiar with and approved the committee's report in general outline, but was taken ill several days prior to the completion of the report and therefore has not seen the report in final form.)

     Upon motion by Mr. Stone, duly seconded and carried, the following resolution was adopted:
     "Whereas the legislature of. the State in its 1941 session has indicated its intent that the joint legislative investigating committee proceed with private hearings before a one-man subcommittee, as heretofore; and
     "Whereas the joint legislative investigating committee has followed the policy of surrounding testimony taken at such private hearings with adequate safeguards for the protection of the witnesses appearing at such hearings and is now taking steps to formalize those safeguards: Now, therefore, be it
     "Resolved, That this board direct all members of the staff and all other employees under its jurisdiction, to promptly obey all subpenas issued by the joint legislative investigating committee, and to give such testimony and such other information as may be requested by the committee or any subcommittee thereof, and to otherwise cooperate with said committee to the best of their ability; and further
     "Resolved, That it will be the policy of the board to take disciplinary action in accordance with law and its bylaws, for any failure to comply with the foregoing; and further
     "Resolved, That a copy of these preambles and resolutions be sent to the joint legislative investigating committee, and that the committee be requested to advise the board of any persons under its jurisdiction failing to testify before it; and further
     "Resolved, That a copy of these preambles and resolutions be posted in at least three prominent places in each institution or branch thereof under the jurisdiction of this board, and further that the administrator be directed to mail a copy if these preambles and resolutions by registered mail to each of the members of the staffs who have heretofore failed to testify before the joint legislative investigating committee or any subcommittee thereof, and to any others who may do so hereafter."
     Mr. Seelman was recorded as not approving the two "Whereas" clauses.
     (b) Upon motion duly made, seconded and carried, the following resolution as adopted:
     "Resolved, That on the question propounded by the special committee with reference to the legislative investigation as to whether or not the special committee shall proceed immediately with the taking of testimony, the committee is requested to inquire of the joint legislative committee if the taking of such testimony would interfere with the joint legislative committee's work, and the special committee is requested to report back the answer at the next regular or special meeting of the Board."
     A true copy of excerpt from the minutes of the Board of Higher Education, January 20, 1941, calendar Nos. 98, 3, and 4.

     Mr. CAVALLARO. The legislature as representatives of the people must have the power to investigate facts concerning matters of public interest and general welfare, and most certainly the public educational system is one of these. A most important consideration, and one which more directly affects the board, arises out of the fact that those engaged in conducting on behalf of the State, its educational system, occupy, unlike private employees, positions of public trust and such must remain accountable to the public. The professor or teacher in a public college is under a duty not only to give an accounting of his own activities but to disclose in the public interest any in-

formation he may have affecting the welfare of the college or the public interest.
     The resolution went on to read further :

     Whereas the joint legislative investigating committee has followed, the policy of surrounding testimony taken at such private hearings with adequate safeguards for the protection of the witnesses appearing at such hearings ***.

     The reason I am referring to that is because I understood from Dr. Gideonse that this committee has afforded those same safeguards.
     The resolution went on to direct the :members of the staff and employees of the city colleges to promptly obey all subpenas by the committee.
     It further went on to say that it is not necessary to remind the board that its sole purpose is to maintain in the city colleges the highest standards of American education. The strength of democracy is an informed and critical citizenry which has been trained to reason and think for itself in the public schools and colleges. Full and free classroom discussion of social and political systems must be given every protection, but the board should not tolerate any indoctrination of propaganda, whether in the interest of communism, fascism; other "ism" with or opposed to democracy.
     The teacher who has been given tenure in his position by the people has an unusual responsibility because he has been so safeguarded He must be more meticulous than the average citizen and must not take advantage of his position under the slogan of academic freedom since academic freedom is meant to safeguard him only in his ho search for truth.
     Your committee is happy to report, however, that apparently an insignificant portion of the college faculties are involved in matters now the subject of investigation. We are dealing with less than 1 percent of the total faculty personnel. Our confidence in the overwhelming majority of the faculty remains undisturbed.
     Mr. MORRIS. May I ask at that point, Have you been in position to cause an investigation of these matters?
     Mr. CAVALLARO: I have not, but I wanted to complete my answer to the original question, Mr. Morris. I hope I have not taken much of your time.
     Mr. MORRIS. No; that is all right.   
     Mr. CAVALLARO. I might say, after my election as chairman board I went into this matter very thoroughly. I read our previous resolutions, those which I have submitted here this morning;
I also had conferences with Dr. William Jansen, superintendent of the Board of Education of the City of New York. I had conferences with Mr. Moscov who is assigned by the corporation counsel to conduct and inquire into subversive activities in the school system with Mr. Dunn, his assistant.
I also had conferences with Ennis Hurley, the corporation counsel of the city of New York, and his assistant, Michael Castaldi. After these discussions I arrived at the conclusion that our board could do and undertake the same as the board of education is doing.
     I wrote a letter to Mr. Abraham Bean, the budget director of the city of New York, in order to explore the matter of receiving funds from the city of New York in order to hire a staff of about 7 or 8 persons to assist an assistant corporation counsel. As of yet I have not  received a reply from Mr. Bean.

     But I was informed by the corporation counsel if our board sought the assignment of an assistant corporation counsel in order to conduct an investigation such as the board of. education has conducted, that he would be very glad to comply.
     I also brought this matter to the attention of our administrative council of the City College, which is composed of the four college presidents, at a meeting on June 8. At that time quite a discussion was had not only of this matter but also of the application of the Feinberg law which was recently, I might say this year, amended so as to include not only the city colleges but also the colleges and schools under the supervision of the University of the State of New York.
     At that time I informed the presidents that I was bringing the matter before the board, which I did on June 15, last Monday. In the interim I appointed a special committee for the consideration of section 903 of the city charter which I have read this morning, the Feinberg law, and related matters.
     I placed a very able lawyer as chairman of that committee, Mr. Gustave G. Rosenberg, and another lawyer who has appeared before our Supreme Court of the United States, Porter Chandler, and three lay people, Mr. Glover, Mr. Rosenkranz, and Mr. Streetham.
     Announcement was made of the appointment of this special committee and of my visit here this morning to the members of the board.  After considerable discussion the board adopted a resolution which I should like to have placed in the record.
     By the way, all of these resolutions are certified to by Mrs. Pearl Max, our administrator.
     The CHAIRMAN. It may go into the record.
     (The resolution referred to follows:)

    THE BOARD OF HIGHER EDUCATION OF THE CITY OF NEW YORK

     Whereas, the board of higher education on November 18, 1940, extend to the joint legislative investigating committee, also known as the Rapp-Coudert committee, its full cooperation and recorded its judgment that all members of he faculties of the municipal colleges should assist the committee in the accomplishment of its purposes; and
     Whereas the board at that time requested the Rapp-Coudert investigating committee to submit to the board such of its minutes together with other data as it might deem proper; and
     Whereas the board at that time appointed a committee to examine the testimony taken before the Rapp-Coudert investigating committee and all other facts in the possession of members of the faculty and all other sources, and where necessary to bring charges against members of the staff deemed to be guilty of conduct unbecoming members of the staff; and
     Whereas the board on April 21, 1941, resolved that the board considered it sufficient cause for the dismissal of a staff member if he or she is proved (1) to have advocated, advised, or taught the doctrine that the Government of the United States or of any State or any political subdivision thereof should be overthrown or overturned by force, violence, or any unlawful means or to be a member of any society or group of persons teaching or advocating such doctrine within the provisions of section 12–a of the civil service law ; (2) to have engaged or participated in activities disruptive of the educational system, or to have accepted the obligations, standards, or discipline of any group which requires its members to act in the interests of any foreign national group, or to follow any predetermined policy or course of conduct; and
     Whereas as a result of evidence disclosed during the Rapp-Coudert investigation, charges of misconduct were preferred against some 33 members of the instructional and administrative staffs of the municipal colleges resulting in the dismissal of 19, the resignation of 11 and the separation from service of 2 others; and

     Whereas the board on September 22, 1952, resolved to extend to such Federal committees as may he investigating subversive activities or charges of subversive activities the board's full cooperation and the board recorded its judgment that all members of the faculty of the municipal colleges will and should assist the committee or committees in the accomplishment of such purposes as the same may be stated in the resolution creating such committee or committees; and
     Whereas the New York State Legislature adopted the Feinberg law (Education, Law Section 3022) in 1949 and extended it in1953 to the faculty members and all other personnel and employees in any college or other institution of higher education owned or operated by the State or any political subdivision thereof  and the board of regents pursuant to said law s conducting hearings .looking toward the establishment of a list of subversive organizations; and
     Whereas the board, in the case of all 14 members of the faculty who have refused to testify before congressional committees under claim of the fifth amendment and self incrimination, has recognized that these staff members under section 903 of the city charter as interpreted by the courts have automatically terminated their employment as members of the municipal college staff:  Therefore be it
     Resolved, That the board, in accordance with its consistent and developing record since 1940, request the special committee appointed by the chairman on section 903 of the city charter, the Feinberg law and related matters; consult with the administrative council composed of the 4 college presidents and to report as soon as possible on policies and procedures to be followed in the premises and in Implementation of the statutes and regents' rules.
     A true copy of excerpt from the minutes of the board of higher education, June 15, 1953, calendar No. 171.

     Upon motion by Mr. Tuttle, duly seconded and carried, the following was adopted unanimously
     "Resolved, That this board extend to the legislative investigating committee full cooperation, and that this board record its judgment that all members of the faculties of the municipal colleges will and should assist the .committee in the accomplishment of the purposes stated in the legislature's resolution creating the committee."
     A true copy of excerpt from the minutes of the board of higher education.
     Minutes of proceedings, November 18, 1940, calendar No. 79.

______________

     At 10:40 p. m. discussion of the matter was resumed and Mrs. Ingraham presented her resolution which was moved, seconded and carried, as follows :
     "Whereas the board of higher education has heretofore expressed its purpose not to retain as members of the collegiate staffs members of any Communist, Fascist, or Nazi group or society, or to retain any individual who, or member any group which, advocates, advises, teaches, or practices subversive doctrines or activities; and
     "Whereas the board deems it in the public interest to clarify the basis of its intended action in the case of any individual who, or member of any group which advocates, advises, teaches, or practices subversive doctrines or activities: Now, therefore, be it
     "Resolved, That the board considers it sufficient cause for dismissal of a staff member if he or she is proved (1) to have advocated, advised, or taught the doctrine that the Government of the United States or of any State or any politic subdivision thereof should be overthrown or overturned by force, violence, or any unlawful means or to be a member of any society or group of persons teaching or advocating such doctrine within the provisions of section 12 (a) of the civil service law; (2) to have engaged or participated in activities disruptive of the educational system, or to have accepted the obligations, standards, or discipline of any group which requires its members to act in the interests of any foreign national group, or to follow any predetermined policy or course of conduct; and be it further

Page 1146

     "Resolved, That it is the intention of the board to adhere to its established policy not to discharge any members of its staffs (1) merely because of membership in a political organization unaccompanied by any of the activities or elements referred to in the resolution above or (2) merely because of any differences of opinion on political, economic, or social matters."
     Mr. Seelman voted no because of the last paragraph.
     A true copy of excerpt from the minutes of the board of higher education, April 21, 1941, calendar E.

     Upon motion duly made, seconded and carried, the following resolution was adopted:
     "Resolved, That the board extend to such Federal committees as may be investigating subversive activities or charges of subversive activities the board's full cooperation and that this board record its judgment that all members of the faculties of the municipal colleges will and should assist the committee or committees in the accomplishment of such purposes as the same may be stated in the resolution creating such committee or committees."
     A true copy of excerpt from the minutes of the board of higher education, September 22, 1952, calendar No. 2 (b).

     Mr. MORRIS. Is this the resolution that sets up the machinery for asking some action in these cases?
     Mr. CAVALLARO. I should like to read the resolution. I will skip the preamble because I think the preambles are covered by the previous resolutions which I have asked to be placed in the record. The resolution itself is very short.

     Therefore be it resolved, That the board, in accordance with its consistent and developing record since 1940, request the special committee appointed by the chairman on section 903 of the city charter, the Feinberg law and related matters, to consult with the administrative council composed of the four college presidents, and to report as soon as possible on policies and procedures to be followed in the premises and in implementation of the statutes and regents' rules.

     I might say I was in communication only yesterday with President Theobold of Queens College. He is at the present time chairman of he administrative council. He called my attention to the fact that he was calling a meeting of the administrative council and of this special committee which I have appointed for tomorrow. I was to earn the hour today and when I get back to the city I will be informed of the time and place of this meeting.
     I find in reading the preamble, Mr. Chairman, that I omitted one very important resolution which was adopted by our board on September 22, 1952. That is most recent. That resolution is short and I should like to not only have it placed in the record but to read it.  It is entitled "Cooperation With Federal Committees."

     Upon motion duly made, seconded, and carried, the following resolution was adopted:
     "Resolved, That the Board extend to such Federal committees as may be investigating subversive activities or charges of subversive activities the Board's full cooperation and that this Board record its judgment that all members of the colleges of the municipal colleges will and should assist the committee or committees in the accomplishment of such purposes as the same may be stated the resolution creating such committee or committees."

     That resolution was passed designedly in order to ask the cooperation of the members of our teaching staff and other employees to cooperate with this committee.

     Senator SMITH. Was any objection to that voiced by the teachers?
     Mr. CAVALLARO. None has come to my attention. I think I could best answer it that way.
     The CHAIRMAN. Are the teachers apprised of this action?
     Mr. CAVALLARO. Yes. I understand from the members of the administrative council that resolution was placed in the hands of each and every member of the teaching staff and the employees.
     The CHAIRMAN. What was the date of the resolution?
     Mr. CAVALLARO. September 22, 1952.
     Senator SMITH. In other words, Doctor, there is a feeling among what you might say the majority and perhaps the best of the teachers, something like this is needed, cooperation with Federal committees?
     Mr. CAVALLARO. May I answer it this way : Since my election I have visited some of the colleges and all that I have talked to have been very enthusiastic about it. I have not heard from the others.
     Mr. MORRIS. This does represent, though, setting in motion, does it not, a machinery, a process whereby some steps can be taken by the board of higher education to solve the problem that you know exists?
     Mr. CAVALLARO. Yes, sir.
     Mr. MORRIS. Is that what it comes down to?
     Mr. CAVALLARO. Yes, sir. I am quite sure when the special committee, which I created, and the administrative council meet, that they will consider the advisability of setting up a staff in order to enable us to proceed in a similar manner to that in which the board of education is proceeding.   
     Mr. MORRIS. In other words, you expect that this machinery that you are setting up will be comparable in its workings to that already set up by the board of education itself and described to this committee by the superintendent of schools?
     Mr. CAVALLARO. If out of the meeting which is to be held tomorrow and subsequent meetings such a recommendation comes out of that committee, the recommendation will be placed before the members of our board for action. Then we will proceed from then on.
     May I also say that I think some similar machinery is needed order to comply with the Feinberg law under which the city colleges now find themselves.
     Mr. MORRIS. Dr. Cavallaro, will you have the power of subpenaing witnesses and administering oaths under this new arrangement?
     Mr. CAVALLARO. As a lawyer, Mr. Morris, I am somewhat familiar with the Civil Practice Act in our State, the code of civil procedure, and there are two sections there.   
     One is section 406 which gives our board the power to subpena. There is another, section 256, of the Civil Practice Act which gives the board the right to administer oaths. I think those flow from the law generally.
     Mr. MORRIS. If a witness whom you have subpenaed and to whom you have administered an oath should perjure himself, there is machinery available that would lead to his indictment for perjury?
     Mr. CAVALLARO. I am glad that you brought that up, Mr. Morris, because I think that I should reemphasize what Dr. Gideonse has testified before your committee before, and that is we are bound by very

strict tenure law under the education law of the city of New York and our own business laws.
     If a teacher testifies falsely under oath, then of course we have machinery to remove him under the tenure laws for conduct unbecoming a member of the teaching staff. As far as we are concerned no criminal prosecution would ensue, but he certainly would be removed if he was found to have perjured himself.
     Mr. MORRIS. You say no criminal indictment could ensue?
     Mr. CAVALLARO. I say as far as the board is concerned I do not think a criminal indictment would ensue, but he would certainly be removed under the tenure statutes for conduct unbecoming a member of the teaching staff:
     Mr. MORRIS. Dr. Cavallaro, does that mean the district attorney could not initiate an indictment?
     Mr. CAVALLARO. No, sir; I did not want to imply that. I am merely stating what our board could do. It is obvious we are not a criminal body.
     Mr. MORRIS. Doctor, to date the board of higher education has not been able to make an appraisal or investigation of the situation as it now exists? That is, with respect to the subversion in the faculties of the colleges?
     Mr. CAVALLARO. I would say not, sir.
     Mr. MORRIS. You are acquainted with the testimony of Dr. Gideonse and the difficulties he had in trying to solve the problem. I think he testified he had been informed by reliable sources that certain members of his faculty were Communists but he was powerless to proceed.
     Mr. CAVALLARO. I read not only Dr. Gideonse's testimony very fully but also that given by Superintendent Jansen and Bella Dodd because she testified as to the workings of this conspiracy.
     I have proclaimed publicly that I am in accord with the sentiments expressed by Dr. Gideonse and Dr. Jansen that your committee has been of very definite assistance to the school authorities.
     Mr. MORRIS. I have no more questions of this witness.
     The CHAIRMAN. Any questions, Senator Smith?
     Senator SMITH. Doctor, I assume from what you have just said you have no fears this committee is trying to stifle academic freedom, then.   
     Mr. CAVALLARO. I do not, sir. I have a statement which I should like to have incorporated in the record at the end of my testimony in which I try to cover that matter not as a professional educator because I was not appointed to this board as an educator. I make no pretense of being an educator. But I have merely studied the matter from the viewpoint of the ordinary citizen and a lawyer, and I have arrived at certain conclusions.
     I might also call to your attention a matter which was before our board when Bertrand Russell was to be appointed as a teacher in the City College. That matter went to our courts in the State of New York. The reason I am calling it to your attention is that that is the only decision which I have been able to find as a lawyer in the reported volumes on academic freedom. I should like to incorporate that as part of the record.

Page 1149

     The CHAIRMAN. It may go into the record and become a part of it.
     (The material referred to follows:)

     See Say v. Board of Higher Education, etc., to Rescind and Revoke the Said Appointment of the Said Dr. Bertrand Russell, 173 Misc. 943 (March 30, 1940), McGeehan, J. at page 947:
     "In this consideration I am completely dismissing any question of Mr. Russell's attacks upon religion, but there are certain basic principles upon which this Government is founded. If a teacher, who is a person not of good moral character, is appointed by any authority the appointment violates these essential prerequisites. One of the prerequisites of a teacher is good moral character. In fact, this is a prerequisite for appointment in civil service in the city and State, or political subdivisions, or in the United States. It needs no argument here to defend this statement. It need not be found in
the education law. It is found in the nature of the teaching profession. Teachers are supposed not only to impart instruction in the classroom but by their example to teach the students. The taxpayers of the city of New York spent millions to maintain the colleges of the city of New York. They are not spending that money nor was the money appropriated for the purpose of employing teachers who are not of good moral character. However, there is ample authority in the education law to support this contention."
     And at pages 950–951:
     "When you consider the vast amount of money that the taxpayers are assessed each year to enforce these provisions of the law, how repugnant to the common welfare must be any expenditure that seeks to encourage the violation of the provisions of the penal law. Conceding arguendo that the board of higher education has sole and exclusive power to select the faculty of City College and that its discretion cannot be reviewed or curtailed by this court or any other agency,: nevertheless, such sole and exclusive power may not be used to aid, abet; encourage any course of conduct tending to a violation of the penal law. Assuming that Mr. Russell could teach for 2 years in City College without promulgating the doctrines which he seems to find necessary to spread on the printed pages at frequent intervals, his appointment violates a perfectly obvious canon of pedagogy, namely, that the personality of the teacher has more to do with forming a student's opinion than many syllogisms. A person we despise and who is lacking in ability cannot argue us into intimidating him. A person whom we like and who is of outstanding ability does not have to try. It is contended that Bertrand Russell is extraordinary. That makes him the more dangerous.: The philosophy of Mr. Russell and his conduct in the past is in direct conflict and in violation of the penal law of the State of New York. When we consider how susceptible the human mind is to the ideas and philosophy of teaching professors, it is apparent that the board of higher education either disregarded the probable consequences of their acts or were more concerned with advocating a cause that appeared to them to present a challenge to so-called academic freedom without according suitable consideration of the other aspects of the problem before them. While this court would not interfere with any action of the board insofar as a pure question of "valid" academic freedom is concerned, it will not tolerate academic freedom being used as a cloak to promote the popularization in the minds of adolescents of acts forbidden by the penal law. This appointment affects the public health, safety, and morals of the community, and it is the duty of the court to act. Academic freedom does mean academic license. It is the freedom to do good and not to teach Evil   Academic freedom cannot authorize a teacher to teach that murder or treason are good. Nor can it permit a teacher to teach directly or Indirectly that sexual intercourse between students, where the female is under the age of 18 years, is proper. This court can take judicial notice of the fact that students in colleges of the city of New York are under the age of 18 years, although some of them may be older.
     "Academic freedom cannot teach that abduction is lawful, nor that adultery is attractive and good for the community. There are norms and critical truth which have been recognized by the Founding Fathers.. We find a recognition of them in the opening words of the Declaration of Independence, where they refer to the laws of Nature and of Nature's God. The doctrines therein set forth, which have been held sacred by all Americans from that day to this,  preserved by the Constitution of the United States and of the several States and

Page 1150

defended by the blood of its citizens, recognizing the inalienable rights with which men are endowed by. their Creator must be preserved, and a man. whose life and teachings run counter to these doctrines, who teaches and practices immorality and who encourages and avows violations of the penal law in the State .6f New York, is not fit to teach in any of the schools in this land. The judicial branch of our Government under our democratic institutions has not been so emasculated by the  opponents of our institutions to an extent to render it impotent to act protect the. rights of the. people,  Where public health, safety, and morals are so directly involved, no board, administrative or otherwise,  may act in a dictatorial capacity, shielding their actions behind a claim of complete and absolute immunity from  judicial  review. The board of higher education of the city .of New, York has deliberately and .completely disregarded the -essential principles upon which the selection of any teacher must rest,  The contention that Mr: Russell will teach mathematics and not his philosophy does not in any way detract from the fact that his very presence as a teacher will cause the students to look up to him, seek to know more about him, and the more he is able to charm them and impress them with his personal presence, the more potent will grow his influence in all spheres of their lives, causing the students in many instances to strive to emulate him in every respect."

     Mr, CAVALLARO I would like to call your attention to one sentence in that:

     Academic freedom does not mean academic 1icense; it is the freedom to do good and not to teach evil.

     The CHAIRMAN. You have stated, ,and our record shows  there is only a small percentage of the teachers in our educational system, that are Communists whom we know advocate the overthrow of this form of government by force and violence; but our record also is replete with
the. fact that although the percentage is small, they exert an influence in the educational system     far out of proportion to this number because they are fanatical disciplined members of a conspiracy.
     Doctor, we appreciate your appearing here this morning and we want to thank you for the information that you have supplied this committee.  We hope that the machinery you have just outlined that you are setting up will work.
     The subcommittee has always maintained that the problem is primarily a local one and should be carried out by local authorities if they have the power and the will to do so. We wish you success because it has been about 10 years in the, New York area. since anything has been done about this serious conspiracy situation outside the work of this committee. We want to assure you we will be standing by to lend you every assistance we possibly can, in this important task: Thank you very. much for appearing.
     Mr. CAVALLARO. Thank you very much, sir. If I may include this statement and oath of allegiance which is taken by our teachers and a copy. of the regent's rules which were just promulgated, I think they will be of help to the committee.
     These were promulgated by the commissioner of education of the state of New York.  Those include the pertinent provisions of our state laws under which the school authorities may remove members of the teaching staff who are guilty of advocating subversive activities.
     The CHAIRMAN. Let the record show this is the only action taken by the board of higher education.
     That statement and oath of allegiance will be made a part of the record.

Page 1151

     (The material referred to follows:)

___________________________________________________________________

PRINT                (Last name)                        (First name)                             (Initial)

    OATH OF ALLEGIANCE

I do solemnly swear (or affirm) that I will support the Constitution of the United States of America and the constitution of the State of New York, and that I will faithfully discharge, according to the best of my ability, the duties of the position of __________________________________________________________________________
                                                                           (Title of position and name designation et
_____________________________________________ to which I am now assigned.
school, college, university, or institution)
                                                                                                               ___________________________________
                                                                                                                   (Signature of teacher)
                                                                                                               ___________________________________
                                                                                                                  (Post-office address)
Sworn to before me this _____   
day of     __________________________, 195__.

                                                                                          ________________________________________
                                                                                           (Official position—see other side)

     The oath required by section 3002 of the education law "shall be administered by the president or other head of such school, college, university institution, or by the officer or person, or in the case of a board or body, having authority to employ such person as a teacher, instructor or professor in school, college, or institution, * * *"
     This oath should be filed by the teacher with the administrative head of the school system in which she (he) teaches—in cities and villages under a superintendent, with the superintendent of schools; in supervisory districts, with the district superintendent; in other schools, with the head of the school. These officers will forward the oaths to the Bureau of Statistical Services the State Education Department, Albany 1, N. Y.

The University of the State of New York, the State Education Department. Albany, the University of the State of New York Press, 1949
    
     Chapter 360 of the Laws of 1949 requires the Board of Regents to "adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve-a of the civil service law." The sections of the law here cited define certain types of subversive activity, and make mandatory the dismissal of school officials, teachers, or other employees who engage in such activity.
     This pamphlet sets forth the Rules adopted by the Regents on July 15, 1949, in accordance with the detailed provisions of the statute. It presents a memorandum by the Commissioner of Education on certain administrative phases of the Rules, together with the full text of Chapter 360 of the Laws of 1949, Section 3021 of the Education Law, and section 12–a of the Civil Law.
     Inquiries with respect to the administration of the Regents' Rules should be addressed to the Commissioner of Education, State Education Department, Albany 1, New York.

     SECTION 254. Disqualification or removal of superintendents, teachers and other employees.
     1. The school authorities of each school district shall take all necessary action to put into effect the following procedures for disqualification or removal of su-

perintendents, teachers or other employes who violate the provisions of section 3021 of the Education Law or section 12-a of the Civil Service Law.
     a.. Prior to the appointment of any superintendent, teacher or employe, the nominating official, in addition to making due inquiry as to the candidate's academic record professional training, experience and personal qualities, shall inquire of prior employers, and such other persons as may be in a position to furnish pertinent information, as to whether the candidate is known to have violated the aforesaid statutory provisions, including the provisions with respect to membership in organizations listed by the Board of Regents as subversive in accordance with paragraph 2 hereof. No person who is found to have violated the said statutory provisions shall be eligible for employment.
     b. The school authorities shall require one or more of the officials in their employ, whom they shall designate for such purpose, to submit to them in writing not later than October 31, 1949, and not later than September 30th of each school year thereafter, a report on each teacher or other employe. Such report shall either (1) state that there is no evidence indicating that such teacher or other employe has violated the statutory provisions herein referred to, including the provisions with respect to membership in organizations listed by the Regents as subversive in accordance with paragraph 2 hereof ; or (2) where there is evidence indicating a violation of said statutory provisions, including membership in such a subversive organization, recommend that action be taken to dismiss such teacher or other employe, on the ground of a specified violation or violations If the law.
     c. The school authorities shall themselves prepare such reports on the superintendent of schools and such other officials as may be directly responsible to them, including the officials designated by them in accordance with subdivision b of his paragraph.
     d. The school authorities shall proceed as promptly as possible, and in any event within 90 days after the submission of the recommendations required in subdivision b of this paragraph, either to prefer formal charges against superintendents, teachers or other employees for whom the evidence justifies such action, or to reject the recommendations for such action.
     e. Following the determination required in subdivision d of the paragraph, the school authorities shall immediately institute proceedings for the dismissal f superintendents, teachers or other employes in those cases in which in their judgment the evidence indicates violation of the statutory provisions herein referred to. In proceedings against persons serving on probation or those having tenure, the appropriate statutory procedure for dismissal shall be followed. proceedings against persons serving under contract and not under the provisions of a tenure law, the school authorities shall conduct such hearings on charges as they deem the exigencies warrant, before taking final action on dismissal. In all cases all rights to a fair trial, representation by counsel and appeal or court review as provided by statute or the Constitution shall be scrupulously observed.
     2. Pursuant to chapter 360 of the Laws of 1049, the Board of Regents will sue a list, which may be amended and revised from time to time, of organizations which the Board finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the Government of the United States, or of any state or any political subdivision thereof, shall be overthrown or overturned force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth section 12-a of the Civil Service Law. Evidence of membership in any organization so listed or or [sic] after the tenth day subsequent to the date of official promulgation of such list shall constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system. Evidence membership in such an organization prior to said day shall be presumptive evidence that membership has continued, in the absence of a showing that such membership has been terminated in good faith.
     3. On or before the first day of December of each year, the school authorities of each school district shall render to the Commissioner of Education a full sort, officially adopted by the school authorities and signed by their presiding officer, of the measures taken by them for the enforcement of these regulations ring the calendar year ending on the 31st day of October preceding. Such sort shall include a statement as to (a) the total number of superintendents, teachers and other employees in the employ of the school district; (b) the number of superintendents, teachers and other employes as to whom the school authorities and/or the officials designated by them have reported that there is no evidence indicating that such employes have violated the statutory provisions

Page 1153

herein referred to, including the provision s with respect to membership in organizations listed by the Regents as subversive; and (c) the number of superintendents, teachers and other employes in whose cases the school authorities and/or the officials designated by them have recommended that action be taken to dismiss the employes in question, on the grounds of specified violations of the law or evidence of membership in a subversive organization. Such report shall also include, for the group listed under (c) above, a statement of (d) the number of cases in which charges have been or are to be preferred and the status or final disposition of each of these cases; (e) the number of cases in which the school authorities have concluded that the evidence reported by the designated officials does not warrant the preferring of charges; and (f) the number of cases in which the school authorities have not determined, as of October 31st of the school year in question, on the action to be taken.
     4. Immediately upon the finding by school authorities that any person is qualified for appointment or retention in employment under these regulations, said school authorities shall report to the Commissioner of Education the name of such person and the evidence supporting his disqualification, including transcript of the official records of hearings on charges, if any, which have been conducted.
     5. This section shall take effect immediately.

COMMISSIONER'S MEMORANDUM ON ADMINISTRATION OF REGENT'S RULES RELATING TO SUBVERSIVE ACTIVITIES

     Boards of education and school trustees have always been under obligation to provide such supervision of teachers and other employees as will insure sound teaching and a wholesome school environment. Chapter 360 of the Laws of 1949 (commonly referred to as the Feinberg Act) imposes on school authorities no new supervisory responsibility. The new legislation has the effect of directing attention to a special supervisory need—namely, the need “to protect the children in our State from * * * subversive influence”—which the Legislature finds to be particularly acute at the present time, and of requiring the Board of Regents to prescribe procedures under which special attention will be given to this need.
     The Rules established by the Regents in response to the direction of the Legislature are largely self-explanatory. The Rules provide systematic procedures for identifying and removing from the school system disloyal teachers or employes.
     On four major points certain supplementary comments may be appropriate.  These points are (1) the responsibility of the officials designated by authorities for reporting on teachers and other employes, (2) the types conduct which may properly be considered by school authorities as subversive in the meaning of section 3021 of the Education Law and section 12-a of the Civil Service Law, (3) the rights of a person accused of subversive activity to a hearing on charges, and (4) the listing of organizations found by the Regents to be subversive within the meaning of the law.

1. Reports by school officials
     The officials designated by school authorities to report on teachers and employes will face a two-fold duty. It will be their responsibility, on the one hand, to help the school authorities rid the school system of persons who “use their office or position to advocate and teach subversive doctrines.”  On the other hand, it will be their responsibility so to conduct themselves and their inquiries as to protect and reassure teachers who are not subversive.
     School authorities will need to select with great care the officials to be entrusted with this duty.¹ The officials chosen should be persons of wide acquaintance within the school system, sound judgment in matters of relationships, and sufficient maturity and professional experience to have won the respect of the other local officials, teachers and school employes of the general public. Furthermore, these officials must be close enough to of the classroom teacher so that they will have a real understanding of the methods of presentation that may make the difference between teaching that is subversive in intent and teaching which has neither a subversive purpose nor subversive results.

_______
     1 School authorities in districts employing fewer than eight teachers will ordinarily find it  advantageous to designate one or more of their own number as the officials to or make the required reports. When there is only a single trustee in such a district, he or she will presumably make all the reports required by the Regents' Rules.

Page 1154

     In preparing the reports which they are to render to the school authorities, the designated officials will of course use their own acquaintance with the teachers for whom they are responsible as an immediate guide. If these officials are in fact well acquainted with the individual teachers on whom they are to report, they will already be in possession of sufficient facts either to substantiate their judgment of a teacher's loyalty or (in the case of teachers about whom they have some question) to indicate the need for further evidence. In weighing such further evidence the officials should be guided by the considerations presented in section 2 of this memorandum. Any evidence submitted to such officials which reflects adversely on a teacher, they are bound to examine promptly, dispassionately and thoroughly.
     The designated officials should bear in mind for their own guidance, and where appropriate should bring to the attention of others, the fact that while statements made in connection with an official charge of disloyalty are legally privileged, no privilege attaches to gossip and the circulation of rumor. In this latter connection attention is called to the Matter of Meneker v. Chesney, 297 N. Y. 94 (101) in which the Court of Appeals stated: "The courts have held that a false charge that one is a Communist is basis for a libel action."

2. Subversive activity
     The Education Law and the Civil Service Law make it entirely clear that a teacher or other employe who "wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any State or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means," or who participates in the preparation, publication or distribution of written or printed matter advocating such a doctrine or advising its adoption, or who "organizes or helps to organize or becomes a member of any society or group of persons" which teaches or advocates such a doctrine, or who utters "any treasonable or seditious word or words" or does "any treasonable or seditious act or acts," is engaging in subversive activity and is subject to dismissal. It should be noted that this activity need not be merely by word of mouth. The writing of articles, the distribution of pamphlets, the indorsement of speeches made or articles written or acts performed by others, all may constitute subversive activity. Nor need such activity be confined to the classroom. Treasonable or subversive acts or statements outside the school are as much a basis for dismissal as are similar activities in school or in the presence of school children.
     It must be borne in mind that teachers who are honestly concerned to help their pupils to become constructive citizens are likely to raise many questions and make many suggestions about possible improvements in the American form of government and American institutions, which can not in any just sense be construed as subversive. Especially if these teachers are teachers of history, civics or government, they are likely also to bring to their pupils' attention materials dealing with foreign peoples and foreign governments (including the people and government of Russia), not for the purpose of advocating changes in our own government but for the purpose of acquainting their pupils with the kinds of government under which other people live.
     Moreover, teachers who take full advantage of their own privileges as citizens may raise questions and make suggestions outside their classrooms, about improvements in our form of government. In addition, they may quite legitimately inform themselves fully, and enter into discussions with other people, about forms of government different from our own.
     School authorities and the officials designated in accordance with the Regents' Rules must be alert to guard such teachers against unjust accusation and condemnation. In particular, they should reject hearsay statements, or irresponsible and uncorroborated statements, about what a teacher has said or done, either in school or outside. They should examine an accused teacher's statements, writing or action in their context, and not in isolated fragments. They must insist on evidence, and not mere opinion, as a basis for any action which they may take.
     But the statutes and the Regents' Rules make it clear that it is a primary duty of the school authorities in each school district to take positive action to eliminate from the school system any teacher in whose case there is evidence that he is guilty of subversive activity. School authorities are under obligation to proceed immediately and conclusively in every such case.

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3.  The preferring of charges.
     Neither section 12-a of the Civil Service Law nor section 3021 of the Education Law nor Chapter 360 of the Laws of 1949 modifies in any way the rights accorded to teachers under the tenure laws.
     Teachers serving on tenure can not be dismissed, whether. for subversive activities or for any other cause, without opportunity for a hearing, of which a stenographic record must be made. Written charges must be served. Accused teachers must be given opportunity to appear in person or by counsel, before either a duly appointed trial committee or the full board of education, as the law may provide. Teachers have the right to subpena witnesses (including their accusers), to present witnesses in their own behalf, and to cross-examine opposing witnesses. They have also the full right of appeal.

4. List of subversive organizations
     The Regents have not as yet published a list of organizations which, in accordance with Chapter
 360 of the Laws of 1947, they have found to be subversive; in that the said organizations "advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine." Due notice will be given to school authorities of the publication of the required list. Pending its publication, school authorities are responsible for proceeding with all diligence in the cases of teachers whose acts other than membership in specified organizations fall within the purview of the statutes. They are not responsible until the list. is published, for proceeding against teachers on the ground that they belong to any specified organization.
     In the reports required as of October 31st, school authorities will be expected to indicate the measures which they have put into effect prior, as well as subsequent, to the publication of the Regents' list.

     SECTION 1. The legislature hereby finds and declares that there is common report that members of subversive groups, and particularly of the Communist Party and certain of its affiliated organizations, have infiltrated into public employment in the public schools of the state. This has occurred and continues despite the existence of statutes designed to prevent the appointment to or the retention in employment in public office and particularly in the public schools A the state of members of any organization 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. The consequence of any such infiltration into the public schools is that subversive propaganda can be disseminated among children of tender years by those who teach them and to whom the children look for guidance, authority and leadership. The legislature finds that members of such groups frequently use their office; position to advocate and teach subversive doctrines. The legislature finds that members of such groups are frequently bound by oath, agreement, pledge or understanding to follow, advocate and teach a prescribed party line or group dogma or doctrine without regard to truth or free inquiry. The legislature finds that such dissemination of propaganda may be and frequently is sufficiently subtle to escape detection in the classroom. It is difficult, therefore, to measure the menace of such infiltration in the schools by conduct in the classroom. The legislature further finds and declares that in order to protect the children in ours from such subversive influence it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist party and affiliated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced. The legislature deplores the failure heretofore to prevent such infiltration which, threatens dangerously to become a commonplace in our schools. To this end, the board of regents, which is charged primarily with the responsibility of supervising the public school systems in the state; should be admonished and directed to take affirmative action to meet this grave menace and to report thereon regularly to the state legislature.
     SEC. 2. Sections three thousand twenty-two, three thousand twenty-three at, three thousand twenty-four of the education law, as added by chapter eight hundred twenty of the laws of nineteen hundred forty-seven, are hereby renumbered

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to be sections three thousand twenty-three, three thousand twenty-four and three thousand twenty-five respectively.
     SEC. 3. Article sixty-one of the education law, as added by chapter eight hundred twenty of the laws of nineteen hundred forty-seven, is hereby amended by adding thereto a new section, to be section three thousand twenty-two, to follow section three thousand twenty-one of such article, to read as follows :
     SEC. 3022. Elimination of subversive persons from the public school system.
     1. The board of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve-a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such sections of this article and the civil service law.
     2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.
     3. The board of regents shall annually, on or before the fifteenth day of February, by separate report, render to the legislature, a full statement of measures taken by it for the enforcement of such provisions of law and to require compliance therewith. Such reports shall contain a description of surveys made by the board of regents, from time to time, as may be appropriate, to ascertain the extent to which such provisions of law have been enforced in the city and school districts of the state.
     SEC. 4. The schedule of section headings of article sixty-one of such law is hereby amended to read as follows :
             3022. Elimination of subversive persons from the public school system.
             3023. Liability of a board of education, trustee or trustees.
             3024. Teachers responsible for record books.
             3025. Verification of school register.
     SEC. 5. This act shall take effect July first, nineteen hundred forty-nine.

     SEC. 3021. Removal of superintendents, teachers and employees for treasonable or seditious acts or utterances. A person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position.

CIVIL SERVICE LAW

     SEC. 12-a. Ineligibility. No person shall be appointed to any office or position n 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: (a) By word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means ; or

Page 1157

     (b) Prints, publishes, edits, issues or sells, any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein;
     (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.

STATEMENT OF DR. JOSEPH B. CAVALLARO, CHAIRMAN, BOARD OF HIGHER EDUCATION
OF THE CITY OF NEW YORK

     Investigations by committees of the Congress, and of State legislatures, into actions by individuals and groups considered to be subversive of the welfare and safety of the country, have given rise to questions relating to academic freedom. Popular misconceptions concerning the history and meaning of th term are numerous. Inadequate press treatment is related to the misconceptions that prevail. Weak presentation in the public press of the professional position in support of academic freedom by the professionals presumably best equipped to explain and defend it, is also a contributing factor in the faulty picture that has crept into the public mind. A state of mind in a segment of the public which sees teachers on whatever level of education as second-class
citizens who wouldn't be what they are unless they had failed in attempts be something else (and 99 percent of them never heard of Bernard Shaw's crack about teachers) is still another element in the confusion. In addition there are the occasional unwise antics by some few, unrepresentative members of the teaching profession that further confound the confusion.
     Let it be said at the outset that there is a well defined and, on the whole, well-respected idea of academic freedom. Equally well understood is the important handmaiden, academic responsibility. For those members of the profession, at the college-university level, who abuse the code of freedom there are thousands who respect and cherish it because they are intelligent and responsible men and women. The weakness in the usually ill-informed or uninformed critic of academic freedom is that he proceeds from the individual case, of which he knows something, to the general situation, applying a label which may have validity in a single case but cannot be applied to a professional group as such.
     In 1925, a four-part statement on academic freedom was constructed by conference of representatives of AAUW, AAUP, the Association of American Colleges, AAU, Association of Governing Boards, Association of Land Grant Colleges, Association of Urban Universities, National Association of State Universities, and the American Council on Education. The statement was endorsed by the Association of American Colleges, the AAUP in 1926, and reaffirmed by the Association of American Colleges in 1935. Since 1935 then has come into the picture the element of conspiracy as represented by those teachers who held and hold Communist Party membership. The problem posed by this infiltration was, and still is, what to do to protect academic freedom in the face of conspiratorial totalitarian practices by these individuals acting as such or in groups and through influence in other groups.
     The four main points in the. original statement may be summarized as follows: (1) An institution may not put restraint upon a teacher's freedom in investigation in his subject, e. g., biology, unless it restricts the time he may devote to it in order to prevent undue interference with his teaching obligations; (2) the teacher's freedom in the exposition of his own subject in the classroom

Page 1158

 or in addresses outside should not be limited save for the needs of immature students or, in the case of an institution, of partisan character where the limitations should be mutually understood at the outset; (3) no teacher may claim the right to discuss in his classroom controversial subjects beyond the field of his own study or teaching; (4) the teacher, in speaking and writing, outside of the institution which employs him, on subjects outside the limits of his field, "is entitled to precisely the same freedom and is subject to the same responsibilities as attach to all other citizens." If such behavior raises doubts as to his professional fitness, then the  institution through its faculty should act. Teachers should make it clear that they speak only for themselves when such is the case, thus trying not to entangle the institution in any difficulties which conceivably could arise
     I would comment briefly on the third and fourth points. Experienced teachers of integrity know that they must not take advantage, unfairly, of their positions to influence the minds of the young by introducing disputable matters not within the realm of the courses being taught by them. Similarly, it seems to me, they must not allow students pressing a "cause" to commit a like act. I know of no reason why a professor cannot state his personal convictions providing, of course, he neither (1) substitutes them for the material required in a syllabus, nor (2) insists that students submit them as answers in an examination or other course requirement. It seems to me that intelligent students, even when in disagreement with a teacher's views, have more respect for him than they can hope to have for one who merely retails the opinions of others in such a manner that he is, literally, a vocal clip sheet. It should not be forgotten, in addition, that college students have a high degree of sales resistance.. They won't buy a shoddy product. In proportion to the college population in this Nation, the number of permanent adherents to the Communist Party from student ranks has been and continues to be exceedingly small.
     The right of teachers to express their views on matters outside of their professional area was brought into sharp focus during the last presidential campaign when certain :groups of college teachers, who advertised their institutional connections, bespoke support for either one or the other of the candidates. If the institutions concerned had indicated in advance that there was no official opposition to associating the name of the institution with the campaign supporting a. candidate, I cannot see where there is valid objection to the practice. I consider it to have been poor judgment, however, when individuals tied the name of an institution to the support of a candidate without having first cleared the matter through the proper institutional authorities. The special position occupied by the teacher in the American community imposes on him, as it does on doctors and lawyers, a special obligation to protect both the profession and the institution.
     To come, now, to some questions raised as a result of inquiries conducted by congressional committees, it is generally conceded that the method is not the best preferred approach to detect subversive teachers and to dismiss them. It is also true that congressional committees have access to data not available to educational bodies. It would be preferable if educational institutions would and could remove the conspiratorial elements. But it has been demonstrated that the congressional committees have not attempted to do anything other than provide transcripts of testimony and have left to the several institutions the making of decisions regarding those teachers whose behavior has been questioned. Colleges and universities can deal and have dealt with cases of professional competence, immorality, lack of responsibility, etc., but as far as I am informed there is no institution which has dealt conclusively with any case of suspected conspiracy through membership in the Communist Party. It is certainly true that when transcripts were sent to the Harvard Corp. that body, acting as an independent educational agency, received the testimony and freely arrived at a decision not to dismiss the three teachers involved. If this incident means anything, it means that the Harvard Corp. felt free and acted freely in reaching its decision. Obviously there was no interference in the internal administration of the Cambridge institution by any committee of the Congress. Whatever one may think of the judgment of the corporation, he must recognize the freedom of action it enjoyed.
     I should also say that the March 30, 1953, statement of the Association of American Universities on The Rights and Responsibilities of Universities and Their Faculties represents a clarification for many. I do not find in it a clear statement of what American universities stand for or what body of acquired truths they profess to teach.  The statement did, of course, remove many of the

asserted defenses Communist teachers and those who side with them have striven to construct. Clearly stated is the association's conviction that membership in the Communist Party "extinguishes the right to a university position." It seems regrettable to me that it took as many years as it did for some responsible body, such as the association, to make a statement such as this. To the averages observer it looks very much as though the AAU, waited until legislatures and courts had acted before deciding that the protection of academic freedom and the rights of the scholarly community itself required some such declaration of principles. If, as President George N. Shuster of Hunter College ,declared, "The academic fraternity * * * is the sovereign custodian of the laws of evidence, as well as of the principle that the search for truth must be scrupulously exact, undeviatingly objective, and free of personal bias" (The Commonweal, April 1, 1953) then it seems that the universities have waited to take lesson from jurists and lawmakers for the determination of truths which they should have been the first to declare. This strikes an average observer as approaching a surrender of leadership which should be jealously guarded. The years of omission have, fortunately, been terminated by this statement. Credit should be given, also, for the NEA's 1949 Report on American Education and International Tensions which says that "members of the Communist Party of the United States should not be employed as teachers" (pp. 39-40).
     I subscribe to the statement by Norman Thomas, in a letter to the editor of the New York Times, and printed in that paper on February 8, 1953, in which Mr. Thomas says, among other things : "The right of the Communist to teach should be denied because he has given away his freedom in the quest for truth.  And that is fundamental to democracy."
     I feel, too, that Mr. Thomas' defense of inquiry by legitimate authority to ask about Communist Party membership needs to be supported. He said, in same letter, that "good people argue emotionally that academic freedom is lost if in these anxious days a teacher is asked by legitimate authority if he is a Communist, or if, his allegiance to Communists being acknowledged or proved, he is denied the right to teach.”  And in one other regard I find Mr. Thomas' position worthy of support when he says–
     "The constitutional guaranties which properly apply to criminal proceedings do not apply to protect the right to employment in ‘sensitive’ positions—among which is a teacher's post. The right to stay out of jail is not a right to employment. No man should be found guilty of a crime if there is reasonable doubt, but no man should be employed in a sensitive position if there is reasonable doubt of his loyalty or trustworthiness."
     It is wholesome to hear from an educator that in his judgment "the Communist Party is not a political party like any other. It is a secret conspiratorial organization imposing on its members a discipline and a regimentation of thought quite alien to the normal political parties of a democracy." In the opinion of Dr. Lewis Webster Jones, president of Rutgers University, the Communist Party's "standards of ethics are radically different from the ethical principle on which a free society, freedom of thought, freedom of research and teach are based. The distinction between heterodoxy and conspiracy is relevant before the university must insist on tolerance of honestly held frankly proclaimed differences of opinion and its faculty must be free to engage in ordinary, open political activity, but it must protect itself and cooperate in protecting the country against any conspiracy which, if successful, would destroy all freedom.
     Similarly, the chancellor of New York University, Dr. Henry T. Heald, has stated that "it has been clearly demonstrated that a member of the Communist Party is not a free agent, intellectually or politically. He is not the same as any other person expressing an unconventional opinion. He cannot claim academic freedom because he has forsaken the principles of academic freedom. Dr.
Heald does not share the blanket condemnation of investigating committees any more than he supports "irresponsible charges against individuals or institution.”
     The type of publicity given to the defense of academic freedom has, it seems to me, not been accompanied by a clear statement, understandable by the man in the street, that no human freedom is unlimited. In this regard; the remark the Rev. Paul C. Reinert, S. J., president of St. Louis University, during the Religion in Life Week held in March at the University of Colorado, are pertinent.
     President Reinert, holding that academic freedom is a precious possession based on reason, declared that it must be protected by the personal integrity of those who exercise it.
     “Any human freedom which is based on reason has its limits in reason.  By its very nature, no human right is unlimited because human rights are essentially social and limited by the rights of others, as our American Constitution makes

Page 1160

very clear. The teacher must be the servant and minister of truth. His work and teaching must not be determined for him by the opinion of the majority, not even a political majority, still less by the opinions of administrators, trustees, or fellow faculty members. The teacher can and should present to students newly discovered facts and laws, new developments or new applications of old knowledge, new theories which may be advanced in explanation of known data, physical or social. But he cannot and should not teach as true what he knows to be false, or teach as a fact or as a universal law what is as yet but hypothesis of theory. This academic freedom does not mean that a teacher need not adhere to certain basic, absolute principles. If he denies these limitations, his own freedom goes with them. My academic freedom becomes nonsense if I can advocate academic freedom for myself alone. The man who abdicates reason, who denies the natural law, who considers the Bill of Rights as a restriction on his freedom, forfeits his own right to academic freedom."
     The communication sent on January 7, 1953, to the editors of the Harvard Crimson by Zechariah Chafee, Jr. and Arthur E. Sutherland, of the Harvard Law School faculty, included two observations which are pertinent to any consideration of testimony before such a committee as this.
     "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 tor him to obtain the professional advice of a lawyer, to whom he makes prompt and full disclosure of the facts."
     I have wondered how many of the balky witnesses 'ho have taken a stand here against answering questions were free to take such advice were it given to them. Parties to conspiracy, be they laymen or lawyers, are .not freemen.
     The question of whether local education authorities can act to remove subversives from the ranks of their teachers remains.
     It needs no proof to establish the fact that such education-authorities lack (1) access to evidence available to such committees as this, (2) lack staffs of trained investigators and legal talent, the latter necessary for court actions which might ensue, (3) lack experience in investigations of this sort, and, (4) may lack registration beyond their own bylaws under which to proceed.
     Obviously, if there is a State law applicable to such a situation, and I have in mind such an enactment as the Feinberg law in New York State, all local education authorities must enforce the law, which, in this instance, has been upheld by our country's Supreme Court.
     But the question of investigative and legal staffs still remains. Localities can seldom, if ever, supply boards of education with the caliber of experienced investigators available to congressional committees. Lega1 talent must be well schooled in education law and other pertinent legislation. The Board of Educaion of New York City, and superintendent of schools, Dr. Wiliam Jansen, have demonstrated their capacity to act under the Feinberg law. Now that the law as been amended to make explicit what was, apparently, only implicit—namely, that the legislation applies to municipal and State education institutions above the secondary schools—the task facing the board of higher education in.New York City and other agencies responsible for higher schools of learning, remains one of securing qualified staffs to proceed under the law.
     Before concluding these comments I would like to point out that I am in agreement with an opinion expressed as far back as January 15, 1941, by President Harry D. Gideonse of Brooklyn College. In referring to the Rapp-Coudert investigation by a committee of the New York State Legislature, President Gideonse said that the issue raised by that investigation, which left incomplete quite a measure of business, was primitive:
     "May a teacher continue to function if he lies or perjures himself about his political activity? Are conspiratorial practices by a ‘fraction’ on the staff compatible with democratic procedures and professional trust?”

Page 1161

     He held that the issue was not one of minority rights but "it is the cruder elementary question of veracity," and he asked:
     "Can teachers be trusted in a public and professional capacity if they lie and perjure themselves, irrespective of whether they are Republicans, Democrats, or Communists?"   
     Holding that “the struggle for freedom is fundamentally a moral issue,” President Gideonse stated that "this is so in the area of our political and social liberties as well as in connection with the professional privileges associated with freedom of teaching." And he made the further point that “we should not forget * * * that the society about us has a legitimate right to expect us to ‘clean house’ when clear abuse of professional trust is established. * * * Freedom and democracy are best served by a courageous respect for truth. *** Abuse of integrity would be harmful in any profession, but it is fatal in a vocation that is morally and socially anchored in a professional dedication to truth.X”
     Mr. CAVALLARO. May I also present an organization chart of our board which has the various committees and breakdown. I think that might help you to see the size, scope, and extent of our school system.
     The CHAIRMAN. We want to thank you very much.
     Mr. CAVALLARO. We are very proud of our city colleges in the city of New York. It is unfortunate we have this situation.
     The CHAIRMAN. Thank you, Doctor.
     (The chart above referred to appears on pp. 1164-1165.)
     The CHAIRMAN. Will you call the next witness.
     Mr.. MORRIS. The next witness will be Herbert Philbrick.

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