In its present posture the litigation brings before us an appointment affidavit, as modified by the District officials to conform to the advice of the Corporation Counsel,
which contains the following:
I do not advocate nor am I knowingly a member of any organization that advocates the overthrow of our constitutional form of government. I do further swear (or affirm) that I will not so advocate, nor will I knowingly become a member of such an organization during the period that I am an employee of the District of Columbia Government.
Pursuant to statute a three-judge court was convened.
The United States was advised of the pendency of this action,
but has declined to intervene.
Our disposition proceeds on a narrow ground. The statute as applied requires a college instructor to take an oath that he is not and will not knowingly become a member of an organization that advocates the overthrow of our constitutional form of government. Such a requirement has more than once been declared unconstitutional by the Supreme Court. Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966).
In Keyishian, the most recent pronouncement, the Court makes clear that the language in the oaths presented to these plaintiffs suffers from impermissible overbreadth -- as covering passive and inert members of an organization as well as leaders and active members, and as covering members indifferent or even opposed to this objective of the organization as well as those specifically intending its furtherance. "Mere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis for exclusion from such positions as those held by appellants [college professors]."
Amicus curiae has raised for our consideration several troublesome points. One contention is purely procedural, that the statute violates due process in that it fails to provide a procedure by which a nonsigner can demonstrate his fitness for public employment.
Another contention, which interweaves procedural and substantive aspects, is that the oath procedure, which places the burden of going forward and of proof on the oath taker, is in derogation of the First Amendment, as reinforced by the privilege against self-incrimination, since it may not be used by a government unless it meets a heavy burden of demonstrating the need for the inquiry, and cannot be justified in the case of an inquiry which blankets all government employees regardless of the sensitivity of their positions.
The foregoing, which attacks the procedure as defective precisely because it is made applicable to all government employees, sensitive or not, is supplemented by a variant contention that would particularly condemn its application to that unique government employee who is a university professor, because he is a member of a class entitled to that particular freedom of inquiry crystallized in the concept of "academic freedom," which may not be curtailed or trammeled unless both substantive standards and procedural techniques are demonstrated to be necessary in the light of some paramount government interest. There are also distinct, though not entirely unrelated, contentions addressed to that part of the statute which seeks to delimit the right to strike.
Although, as already noted, these contentions are substantial and troublesome, the court believes that the opinion herewith filed, which holds the statute unconstitutional on narrower grounds, suffices to dispose of the present controversy.