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THALBERG v. BOARD OF TRUSTEES OF UNIVERSITY OF ILLINOIS

United States District Court, Northern District of Illinois, E.D


June 13, 1969

SUZANNE MCCORMICK THALBERG, PLAINTIFF,
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, NORMAN A. PARKER, INDIVIDUALLY AND AS CHANCELLOR OF THE UNIVERSITY OF ILLINOIS, CHICAGO CIRCLE CAMPUS, JAMES B. HOLDERMAN, INDIVIDUALLY AND AS ASSOCIATE CHANCELLOR (ADMINISTRATION) OF THE UNIVERSITY OF ILLINOIS, CHICAGO CIRCLE CAMPUS, AND DANIEL C. MCCLUNEY, JR., INDIVIDUALLY AND AS DEAN OF FACULTIES OF THE UNIVERSITY OF ILLINOIS, CHICAGO CIRCLE CAMPUS, DEFENDANTS. ERNESTINE KREHBIEL, PLAINTIFF, V. BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 117, MORGAN COUNTY, ILLINOIS; WILLIAM C. DEEM, HOWARD ARUNDEL, HELEN P. HINDE, JOHN W. KURTZ, HOWARD BECKER, E.C. BONE, AND IVAN HEATON, INDIVIDUALLY AND AS MEMBERS OF SAID BOARD OF EDUCATION; CLIFFORD CRONE, INDIVIDUALLY AND AS GENERAL SUPERINTENDENT OF SCHOOLS FOR SAID SCHOOL DISTRICT 117; GARRIE SPRAGUE, INDIVIDUALLY AND AS PRINCIPAL OF WOODSON ELEMENTARY SCHOOL IN SAID SCHOOL DISTRICT 117; RAY PAGE, INDIVIDUALLY AND AS SUPERINTENDENT OF PUBLIC INSTRUCTION OF THE STATE OF ILLINOIS; AND MICHAEL J. HOWLETT, INDIVIDUALLY AND AS AUDITOR OF PUBLIC ACCOUNTS OF THE STATE OF ILLINOIS, DEFENDANTS.

Before Hastings, Senior Circuit Judge, and Parsons and Decker, District Judges.

The opinion of the court was delivered by: Per Curiam.

Plaintiff Suzanne McCormick Thalberg is a visiting lecturer at the University of Illinois, Chicago Circle Campus. Plaintiff Ernestine Krehbiel is a kindergarten teacher employed by the Board of Education of School District No. 117, Morgan County, Illinois. Each refused to sign the state employees' loyalty affidavit required by Ill.Rev.Stat. ch. 127 § 166b (1969), and were denied compensation for their teaching services. That affidavit reads as follows:

    "I * * * do swear (or affirm) that I am not a
  member of or affiliated with the communist party and
  that I am not knowingly a member or knowingly
  affiliated with any organization which advocates the
  overthrow or destruction of the constitutional form
  of the government of the United States or of the
  State of Illinois, by force, violence or other
  unlawful means."

Claiming the oath and its underlying statutory provisions to be unconstitutional, plaintiffs brought separate actions under 42 U.S.C. § 1983 to enjoin their enforcement. The causes were consolidated pursuant to Fed.R.Civ.P. 42(a), and a three-judge court convened.

The statutes in question, Ill.Rev.Stat. ch. 127 § 166a and § 166b*fn1, as amended, constitute a single legislative enactment with a common objective. Section 166a prohibits the use of any appropriation to pay any part of the compensation of any state employee who advocates, or who knowingly belongs to an organization which advocates, the violent overthrow of the government of the United States or of the State of Illinois. Section 166b supplements Section 166a by requiring state employees to subscribe to the aforementioned oath as a condition precedent to receipt of compensation.

The applicable constitutional standard for the consideration of negative oaths was set forth in Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966), Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L. Ed.2d 629 (1967), and Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed. 2d 228 (1967), as requiring both knowledge of the unlawful purposes of the organization and a specific intent to further those purposes. "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' * * *." Elfbrandt v. Russell, supra, 384 U.S. at 19, 86 S.Ct. at 1242.

The Supreme Court's rejection of the "knowledge" standard in favor of the test of "specific intent" is an affirmation that the First Amendment protects the right to knowingly associate with proscribed organizations absent some participation in the organization's illegal activities. Any lesser test runs the risk of punishing for "knowing but guiltless behavior," thereby chilling the right to free association.

"Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws * * * which are not restricted in scope to those who join with the `specific intent' to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization." Elfbrandt v. Russell, supra, 384 U.S. at 17, 86 S.Ct. at 1241. See also: Opinion of the Justices, 108 N.H. 62, 228 A.2d 165 (1967); Vogel v. County of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961 (1967); Haskett v. Washington, 294 F. Supp. 912 (D.C. 1968).

Sections 166a and 166b suffer from this infirmity. They deny compensation for employment to members of subversive organizations who have knowledge of the group aims, but who have no specific intent to further those aims. Pickus v. Board of Education of City of Chicago, 9 Ill.2d 599, 138 N.E.2d 532 (1956).

Clearly, it is too late in the day to resurrect the premise that public employment, or compensation therefor, may be conditioned upon the surrender of constitutional rights that could not be abridged by direct governmental action. Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952).

In sum, the constitutional issues raised in these actions have been fully and finally determined by the Supreme Court in Keyishian, Elfbrandt and Whitehill, supra. We are, therefore, left with no alternative but to conclude that the Illinois oath and underlying statutes, Sections 166a and 166b, supra, must fall as being in derogation of the First and Fourteenth Amendment rights of the plaintiffs.

It is, therefore, considered, ordered and adjudged:

(1) That defendants be and they are hereby enjoined from enforcing said statutes and the loyalty oath required thereunder and denying compensation to these plaintiffs.

(2) That said statutes and the loyalty oath required thereunder be and the same are declared void, unconstitutional and of no effect.

(3) That plaintiffs be awarded such compensation, interest, damages, and costs, as may be determined and awarded by District Judge James B. Parsons, to whom this case was originally assigned.


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