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STEWART v. WASHINGTON

June 4, 1969

Roma STEWART, Plaintiff,
v.
Walter E. WASHINGTON et al., Defendants



Per Curiam

Shortly after plaintiff, Roma Stewart, presented her credentials, on or about January 3, 1969, for the position of substitute school teacher in the school system of the District of Columbia Government, she was notified by defendant William C. Boyd, Administrative Principal of Tri-School, that she was employed and hired, and indeed was the first person to be accepted under a program known as Project 470, and within a short time would be given the formal oath of office. On or about January 3, 1969, plaintiff signed and completed all required forms, but refused to subscribe to the formal "oath of office," on the ground that it was unconstitutional and contrary to her obligation and duty as a citizen, and objectionable as a matter of conscience. She was informed that her action precluded her being formally sworn in, and that there was no appeal from this decision.

 Plaintiff's action against appropriate District officials complains that this prevention of the fulfillment of the hiring agreement ensues from the enforcement of unconstitutional statutes and seeks an injunction enjoining the enforcement of the statutes requiring employees of the District of Columbia Government to take an oath of office. The pertinent provisions are contained in Title 5, United States Code, sections 7311 and 3333. A three-judge district court was convened. The Attorney General was duly advised of the pendency of the litigation, but on April 14, there was lodged in the docket a letter signed by J. Walter Yeagley, Assistant Attorney General, advising that the United States declined to participate. We conclude that applicable Supreme Court decisions require us to rule that the statutory provisions are unconstitutional, and accordingly we enter an order restraining the enforcement of these provisions.

 I

 The first oath of office tendered to plaintiff was revised by the defendants after this action was commenced after this court's decision in Haskett v. Washington, 294 F. Supp. 912 (1968). She declined to execute the revised oath of office, and her action continued.

 The last paragraph of the oath, Section B, provides: "Having read the foregoing, I swear (or affirm) that my acceptance and holding of the position to which I am appointed does not and will not violate section 7311 of Title 5 of the United States Code." This provision in the oath was required by 5 U.S.C. § 3333. *fn1" Thus section 7311 of Title 5 of the U.S. Code is the key legislative provision brought into the case by § 3333 and the oath tendered pursuant thereto.

 The litigation before us relates to these particular statutes, and it should not be over-extended, directly or by implication, as a cause celebre that involves test oaths generally. Our Constitution contains a specific provision recoiling from the odious test oaths that emerged in Britain in the 17th century, and which disqualified from public office all Catholics and non-conformists not subscribing to the doctrines of the Church of England. That provision is Article VI which provides: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

 On the other hand, Article VI of the Constitution specifically provides for an oath of office, usually denominated the constitutional oath, and the Presidential Oath of Article II provides: "I do solemnly swear (or affirm) that I will faithfully execute [my office] * * * and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." The validity of such an oath was sustained in Knight v. Board of Regents of University of State of N.Y., 269 F. Supp. 339 (S.D.N.Y.1967) aff'd 390 U.S. 36, 88 S. Ct. 816, 19 L. Ed. 2d 812 (1968). Nothing in this opinion is intended or should be in any way construed as casting doubt on the validity of that oath, or some similar oath.

 However, section 7311, and the oath incorporating it (by direction of section 3333), are of such a nature that we are required, by virtue of the applicable decisions of the Supreme Court, to rule that they are unconstitutional. See, e.g., United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967); Whitehill v. Elkins, 389 U.S. 54, 88 S. Ct. 184, 19 L. Ed. 2d 228 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967).

 Section 7311 applies to any person who advocates overthrow of the Government, and is not limited to those advocating its overthrow by force and violence. It applies to one who advocates overthrow in the distant future, as well as in the present or near future. It applies to any member of an organization which advocates overthrow of the Government, including passive members who have not taken and who do not intend to take action in pursuance of that objective or purpose of the organization. It applies, by virtue of § 3333, to all employees of the District government, regardless of whether the post is sensitive or custodial in function.

 The invalidity of these provisions under the applicable jurisprudence is clear. Two years ago, in Keyishian, supra, the Court held invalid a New York statute and regulations that required all state employees, "regardless of the sensitivity of their positions," that barred state employment to "members of listed organizations." The Court noted again that men adhering to an organization "do not subscribe unqualifiedly to all of its platforms or asserted principles," and reiterated its earlier admonition (385 U.S. at 607, 87 S. Ct. at 686): *fn2"

 
A law which applies to membership without the "specific intent" to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of "guilt by association" which has no place here.

 The following term the Court reaffirmed its position in striking down a Maryland statute that required state employees to subscribe to an oath stating that the affiant was not engaged "in one way or another" in an attempt to overthrow the Government of the United States. Whitehill v. Elkins, supra.

 In striking down a provision of the Subversive Activities Control Act that made it a criminal offense for any member of a Communist-action organization under final order to register to engage in any employment in any defense facility, the Court stated, see United ...


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