vol. 26, no. 11

American

Civil Liberties

Union

Volume XXVI

Arbitrary Action

Phone Service

San Francisco, November, 1961

Edgar J. Sokol, the operator of a turf information service

at 323 Geary Street in San Francisco found out last month

that his contract with the telephone company was only as good

as his ability to maintain a good relationship with every law

enforcement officer in the City and County of San Francisco.

Phone Removed

- On Friday, October 13, three

police officers led by a Sgt. Mul-

lins and three telephone com-

pany workmen descended on

Sokol's office and took out his

telephone. Sokol had received no

warnings or notice nor had any

arrests or interrogations taken

place in connection with his busi- -

ness. When Sokol asked the ser-

geant for an explanation, Mullins

answered. "Your telephone num-

ber was found in the office of a

bookie." -

P.U.C. Regulation

Investigation by the ACLU re-

vealed that the State Public Util-

ities Commission has ruled that a

public utility must discontinue

service whenever it has reason-

able cause to believe that the

service is being used for an il-

legal purpose. The ruling further

provides that a notation to this

effect from any law enforcement

___ officer shall be sufficient to pro-

vide reasonable cause and that

the telephone company shall not

be liable in any court for the act

of disconnecting service. The

above terms are made an implied

term in every contract for tele-

phone service in the State of

California.

Hearing Requested

The sole remedy for the dis-

continuance of telephone service

is a hearing before the State Pub-

lic Utilties Commission. On Octo-

ber 18th the ACLU filed a com-

plaint in the Sokol case asking

for such a hearing and for a tem-

porary restraining order restor-

ing telephone service to Mr.

Sokol pending the hearing. The

State Commission has not yet

taken any action.

No Violation of Law

The complaint alleges that So-

kol is a private handicapper

whose only service is to provide

the names of horses he considers

to be good bets for pari-mutual

wagering at California tracks.

such information could not be

used to aid in the violation of the

law and in fact such handicap-

"ping services have existed for

many years in San Francisco and |

are a regular feature of daily

newspapers in this State. The ex- -

cuse given by the police depart-

ment-that Sokol's number was -

found in the possession of a sus-

pected bookie-is patently insuf-

ficient. Sokol had extensively ad-.

vertised his number and had no

way of knowing who had it in his

possession. E

ACLU Interest

The ACLU is interested in the

seeming deprivation of due proc- -

ess whereby any person may have

his phone service terminated by

the unverified, unsupported as-

sertion of a law enforcement of:-

ficer and not be able to get serv-

`ice restored - no matter how

clearly he can prove that the

police action was without founda-

tion - until the slow course of

Public Utilties Commission ac-

tion has taken place. We have

been informed that many small

businesses - have suffered from

this deprivation of utility service

because some law enforcement

officer suspected them of illegal

conduct-_M.W.K. =

Political Issue

In Teaching

Credential Case

_On December 9, a hearing of-

ficer will consider the refusal of

`the California Commission on

Credentials to issue a general

elementary teaching credential to

an applicant who refused to an-

swer certain political questions

not ordinarily asked of applicants,

Recentiy, the State Board of

Education decided not to present

these supplemental questions to

teachers applying for renewal of

their credentials but approved

presenting these questions to new

applicants.

The questions are those pro-

vided for in the Dilworth Act,

but under that law authority to

ask the questions has been con-

ferred upon local school boards

_and not upon the State Board of

Education. A recent opinion of

the Attorney General denying the.

authority of the State Board was

recently overturned by a later

opinion holding that the State

~Board has authority to ask the

Dilworth Act questions of new ap-

plicants for credentials.

The questions relate to present

and past membership in the

Communist Party and in groups

advocating the violent overthrow

of the government. "

Number 117

HOWARD A. FRIEDMAN

Elect Howard

A. Friedman

As Chairman

Howard A, Friedman, 42, of

Hillsborough, was elected chair-

man of the Board of Directors of

the ACLU of Northern Califor-

nia to succeed Rabbi Alvin I.

Fine, who resigned from the

board because of illness.

Friedman has served on the

board since November 1956. He

is an architect and a member of

the firm of Schubart and Friedman

of San Francisco.

Friedman was born in New

York City and attended school in

Yonkers, New York. In 1949 he

received an A.B. in Architecture

from the University of California

in Berkeley,

In the meantime, he had work-

ed as a draftsman in New York

and seen service with the Sea-

bees for four years, After gradua-

tion from college he was as-

sociated first with Albert F. Roll-

er and then Wurster, Bernardi

and Emmons before going into

partnership with Henry Schubart,

Jr., in 1953.

Friedman is President, of the

State Board of Architectural Ex-

aminers and a member of the

Board of Directors of the Hebrew

Home for the Aged. He is a mem-_

ber of many civic organizations.

Friedman is married and has

three children. His wife, Phyllis,

at one time headed a successful

ACLU membership drive in the

San Mateo area.

on the extreme left.

Exploiting Menace of Communism

"Communism's present threat to the very survival

of the United States and the rest of the free world has

placed heavy burdens on the defenders of human free-

dom and dignity ... We are concerned to observe that

this burden is being aggravated by certain individuals

and organizations unscrupulously exploiting the menace

of communism te promote other activities equally sub-

versive and equally un-American.

"Subversion cannot be combatted by subversion.

Those who would support the extreme right today do as

great a violence to our national institutions as do those

"The hate group appeals to the unwary by a cynical:

use of concepts having a deep emotional appeal to the

majority of decent citizens-love of God, country, home; -

or any path to Communism. Amid cries of patriotism and

religious devotion, these groups propagate hoaxes and

smears aimed at setting creed against creed and race

against race. They use the divisive tactics of the Com-

munists whom they allegedly deplore. Depending upon

the type of audience to be reached, this propaganda is

couched in language ranging from violent vituperation

to subtle innuendoes." - Preliminary Report to the

House of Representatives by the Committee on Un-

American Activities, December 17. 1954.

The Army last month filed security charges against a 25-

year-old University of California student because of alleged

subversive associations. As a draftee, he served in the Army,

for two years, for which he received an honorable separation,

but, under law, he is also required to serve six years in the

unorganized reserve before re-

ceiving his discharge.

Subject To Emergency Duty

Such service is only a nominal

-one. Members of the inactive re-

serve are not again subject to

active duty except by call of the

President in an emergency, In

this case, the inactive service

will expire next year and nor-

mally he would then be entitled

to receive an honorable dis-

charge.

Now, however, the Army

threatens to give the young man

an Undesirable Discharge. In ef-

fect, the filing of charges against

inactive reservists means that the

Army contends that for six years

after serving in the Army a

Loyalty Oath

Ruling Affirmed

By High Court

The United States Supreme

Court last month refused to re-

view the 43 decision of the Cali-

fornia Supreme Court of last

January 25 holding that the oath

of non-disloyalty required to use

a schoolhouse as a meeting place

is unconstitutional. The appeal

was filed by the Los Angeles and

San Diego boards of education.

The school beards had refused

to allow the Southern California

Branch of the ACLU to hold a

series of monthly public meetings

in schoolhouses without signing

the oath. The California Supreme

Court declared that the law in

question permitted "a censorship

in advance of the right of as-

sembly and free speech upon the

mere determination of the prob-

ability of its future misuse."

Because of its principled op-

position to loyalty oaths, the

ACLU and its chapters have not

attempted to hold meetings in

schoolhouses until the test cases

could be disposed of. No doubt,

many school boards will continue

to require the oath, either wil-

fully or through ignorance, Their

present application forms con-

tain the oath and most of them

won't bother fo strike them out.

Applicants for meeting places

may, of course, strike out the

oath on the application form, If

' they should have any difficulty

whatsoever in securing a meet-

ing place without signing the

oath; they should at once get in

touch with the ACLU office.

Mid-Peninsula

Elects Interim

Board Members

The Board of Directors of the

Mid-Peninsula Chapter of the

ACLU elected the following four

new members to fill vacancies

until the general elections that -

_ its usual practices.

will take place in February, 1962;

Leroy Lucas, Palo Alto dentist,

to serve as treasurer; Karel de-

Leeuw, Stanford University math-

ematician; Richard Gould, en-

gineer at Stanford Research In-

stitute; and, Ernest H. Norback,

Menlo Park attorney .

The board meets regularly the

second Thursday of each month

at the Young People's Room of

All Saints' Episcopal Church,

Hamilton and Waverly Streets,

Paio Alto. Next meeting, Novem-

ber 9 at 8 p.m.

draftee's associations are subject

to its approval,

Three Charges

Three charges have been made

against the young man. The first

charge is that "Since 1959 you

have been a member and at-

tended numerous meetings of the

Bay Area Young Socialist Al-

liance, also known as -the Young

Secialist Alliance, at San Fran-

cisco, California. The Socialist

Workers Party is the controlling

force of the Bay Area Young

Socialist Alliance." (Emphasis

supplied.)

' The second charge is that "On

5 April 1959, 3 May 1959 and 17

May 1959, respectively, you at-

tended meetings sponsored by the

Mark Twain Club, also known

-as Mark Twain Marxist Study

Club, in San Francisco, Califor-

nia, The Mark Twain Marxist

Study Club is the successor to

the Labor Youth League in the

San Francisco area and is com- ~

posed of the same membership."

Falsifying Official Document

The third charge is that in ex-

ecuting an Army form on Septem.

ber 2, 1960, the young man "ma-

terially falsified an official docu-

ment by failing to list thereon

your membership in the Bay

Area Young Socialist Alliance

and attendance at meetings of the

Mark-Twain Club.'-On the form

are a number of general ques-

tions as to whether the indi-

vidual has been a member or

affiliated or associated with any

Communist organization or a

group which advocates the violent

overthrow of the Government,

Not On Attorney General's List

Neither of the groups in ques-

tion is on the Attorney General's

list. In effect, the allegations

claim that at one and the same

time the young man had Com-

munist and Trotskyite associa-

tions.

A hearing before a so-called

Field Board has been requested.

At this writing, no hearing has

been scheduled.

Court Precedent

While the precise issue has

not yet been determined by the

U.S. Supreme Court, the U-S.

Court of Appeals in the District

-of Columbia faced the issue last

June 15, 1961 (Bland v. Con-

nally), That case was determined,

however, on the absence of con-

frontation at the hearing. "With-

out attempting to resolve the

constitutional question," said the

court in a unanimous decision,

"we seriously doubt that the Con-

stitution would condone the in-

fliction of such injury, in the,

service of an interest so relatively

weak, without the protection of

the right of confrontation."

Possibly the Army intends to

present witnesses at the coming

hearing to establish its charges.

If so, it will be a departure from

in This Issue:

ACLU Docket ..........; 2

Denial of Due Process to the

Mentally JH 2... 2.2... p.4

Disclosure of information

About Students ........ p.3

Oppese Arrest Record

Question on Form 57 ... p. 2

27th Annual Meeting Sheds

Light on Radical Right. .p. 3

$54,372.20 Goal Set in

Annual Drive for Funds . p. 3

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG . . . Editor

503 Market Street, San Francisco 5, California, EXbrock 2- =o

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

Dr. Alfred Azevedo

Theodore Baer

Prof. Arthur K. Bierman

Rey. Richard Byfield

Prof. James R. Caldwell.

John J. Eagan and

. Samuel B. Eubanks

Rey. F. Danford Lion

Prof. Van D. Kennedy

John R. May

Lloyd L. Morain

Board of Directors of the American Civil Liberties Union

of Northern California (c)

CHAIRMAN: Howard A. Friedman

VICE-CHAIRMEN;: Dr. Alexander Meiklejohn .

Helen Salz

Rey. Harry B. Scholefield

SECRETARY-TREASURER: John M. Fowle

EXECUTIVE DIRECTOR: Ernest Besig

Prof. Charles Muscatine

Prof. Herbert L. Packer

William M. Roth

Clarence E. Rust

Prof. Nevitt Sanford

Mrs. Alec Skolnick

Mrs. Martin Steiner

Gregory S. Stout

Donald Vial

GENERAL COUNSEL

Wayne M. Collins.

Federal Employment Application

1 The American Civil Liberties Union called recently for a

change in the wording of a question on the federal employ-

ment application which requires divulgence of a police record

of investigation or arrest. The civil liberties organization said

the present wording "violates the spirit of the due process

right of fair evaluation and

judgment' because "mere ar-

rest" is not a true test in judging

the character of an applicant.

Revised Question

As revised last March Question

37 on the Application for Fed-

eral Employment, Form 57,

reads: "Have you ever been ar-

rested, taken into custody, held

for investigation or questioning,

or charged by any law enforce-

ment authority? (You may omit:

(1) Traffic violations for which

you paid a fine of $30.00 or less;

and. (2) anything that happened

before your 16th birthday. All

other incidents must be included,

even though they were dismissed

or you merely forfeited col-

lateral.)"

The ACLU urged that all

questions pertaining to arrest be

deleted from Form 57 except

those dealing with felonies,

either an indictment, issuance of

-an information or a conviction.

The ACLU. objection was made

on these grounds: (1) an arrest

record does not necessarily im-

ply "criminal behavior in the

sense of harm to society." (2)

police officers, "eager to flaunt

their personal power under the

authority of a law enforcement

agency ... frequently are too

quick to make arrests and press

charges;" and (3) revelation of

"an applicant's arrest record

"creates an unfavorable aura

which is bound to influence the

decision about his employability."

These points were made in a let-

ter on August 24 to John W.

Macy Jr., chairman of the United

States Civil Service Commission

from the national office of the

ACLU.

Illustrating its point that mere

arrest should not be prejudicial

to an applicant, the Union said

that "Persons holding meetings

or handing out literature for

such causes as the right of labor

unions to organize, opposition to

racial discrimination, or an end

to nuclear testing have been `ar-

rested, taken into custody,' ete.

despite the fact that such activity

is a perfectly proper exercise of

the First Amendment and in

many circles is considered bene-

ficial to society. Newspapers re-

port daily how persons opposed

to racial segregation are `charged .

by ... law enforcement authority'

despite the peaceful character of

. ACLU NEWS

November, 1961

Paae 2

their protest. The best illustra-

tion of this is the current Free-

dom Ride campaign which in

Jackson, Mississippi, alone has re-

sulted in over 300 arrests ...

The fact that Freedom Riders are

mainly of college age who will

soon be seeking employment

highlights the significance of

their arrest record."

The ACLU letter cited the

1959-61 Report of the California

Assembly Interim Committee on

Criminal Procedure to support

its view that some police officers

are prone to make quick arrests.

The Report stated: "The Com-

mittee finds that hundreds of

persons are arrested and re-

leased in California each year

without a complaint ever having

been filed against them. Each of

these persons acquires a per-

manent arrest record which pre-

sents a serious handicap to his

prospects of employment."

The Union recognized the need

for police investigation and ques-

tioning in dealing with problems

`of crime detection and also ac-

knowledged the right of employ-

ers to be well informed concern-

ing the past conduct of an ap-

plicant. But on the latter point

it stated that "information which

could justifiably be required

from applicants might vary from

job to job. Information required

of a prospective FBI agent is of

a different kind than that re-

' quired from a prospective cler-

ical worker."

The Union letter noted that

the California report had pointed

out the especially rejecting at-

titude on the part of govern-

ment toward hiring persons with

arrest records. It cited a Sep-

tember 12, 1956 report of the

Citizens Advisory Committee to

the California Attorney General -

on Crime Prevention which

"recommended that a serious ef-

fort be made to rectify the pres-

ent attitude of government,

which is rejective of people with

records who apply for employ-

ment in government. The federal,

_ state, county, municipal bodies

generally refuse to employ such

people. It is difficult to approach

private .enterprise with a pro-

gram of enlightenment when gov-

ernment, which in one of its

- phases, has stamped the appli-

cant with its approval, refuses to

demonstrate the courage of its

own convictions by hiring the ap-

plicant."

Faculty Judges

The Creighton

Petition

The petition of James Lee

Creighton, University of Califor-

nia student, that his grade of "F"

in Military Science 21A be

changed to one commensurate

with his academic performance,

was again up for consideration at

the meeting of the Academic

Senate in Berkeley on October

9th, but no conclusive action was

taken.

Punitive Grade

Creighton received the "F" as

a punitive grade from Colonel

Malloy of the Military Science

Department (and not Creighton's

instructor in the course) after

picketing against compulsory

ROTC while wearing his uniform.

Creighton violated no military

regulation by this action nor was

his picketing an interference

with his classroom work.

The Senate, in previously con-

sidering the petition had re-

ferred it to a special fact-finding

committee after agreeing to con-

sider it separately from the gen-

eral problem of punitive grades.

Committee's Report

The fact-finding committee re-

ported at the October 9th meet-

ing substantiating many of the

allegations. in the petition but

pointing out that there seemed

to be precedent for issuance of

punitive grades by the. Military

Science Department. The com-

mittee made no recommendation

for Senate action.

tenBroek Motion

Professor Jacobus tenBroek,

Chairman of the Department of

Speech, then moved that the

Senate instruct the Registrar to

change the grade from "F" to

"B", Professor tenBroek pointed

out that under university regu-

lation 25 a professor has the

authority to give a punitive

grade only in a single situation,

that of cheating. In all other

cases the professor must refer

the matter to an pant su ote

or faculty body.

Motion Tabled

After considerable discussion

and concern that a Pandora's box

was being opened (even though

there have been no other peti-

tions filed all the while Creig-

ton's has been pending) the Sen-

ate voted by a sharply divided

count to table Creighton's peti-

tion until another committee

could report on establishment of

procedures for the handling of

similar petitions.

Creighton Can Wait

Fortunately, Creighton is not

a senior and can afford to wait

and see whether or not he will

have to repeat the required

course. Meanwhile the Academic

Senate seems trussed in the net

of bureaucracy and unable to

right a clear injustice without

first clearing away all its fanciful

ramifications -M.W.K.

Letters

e

to the Editor

Editor: -

Boiled down, the Spiekerman,

Jr., letter in the October NEWS

asks: "Heavens! Why doesn't

somebody DO something?"

I think the Spiekermans are

barking up the wrong tree. At

this stage of the game, what the

ACLU needs is not_another chore,

but adequate funds to function

properly on the backlog of work

it already carries.

The present hand-to-mouth

existence of the ACLU points up

the acute need for some method

of securing string-free funds -

funds based on a perpetuity, that

will serve as a foundation free-

ing the ACLU from the pre-

earious uncertainty of the an-

nual membership and contribu-

tion drives.

Crusades are glamorous, but

charity begins at home. Let's se-

cure our financial soundness be-

fore we set out to conquer the

infidels.

Ed Watson

Following are the cases in which the ACLU of Northern

California is presently participating as counsel either before

courts or administrative bodies:

FREEDOM OF SPEECH

AND PRESS

-Peeple v. Shaver. The ACLU

represented Mr. and Mrs. Shaver

who were convicted in San Mateo

county for a violation of the Cali-

fornia law prohibiting the sale of

obscene books. Free speech is-

sues now being raised in a pend-

ing appeal include the right to:

present expert testimony on the

effect of the particular books on

the average person in the com-

munity and the right to introduce

evidence on what are the con-

temporary standards of the com-

munity in reading material.

United States v. Hartman.

Louis Hartman was convicted of

contempt of Congress for refus-

ing to answer certain HCUA

questions concerning his political

activities, basing his objections

on First Amendment grounds.

His conviction was recently af-

firmed by the U.S. Court of Ap-

peals and the ACLU has now pe-

titioned the U.S. Supreme Court

to review the case. Free speech

issues include the failure to

prove that there was probable

cause that Hartman had any in-

formation which might be of

value to the Committee, and the

failure to apply correctly the

"balancing test" of the First

Amendment recently promul-

gated by the Court. The petition

was prepared with the aid of vol-

unteer attorneys Albert M. Ben-

dich, Cole Blease and Hartly

Fleischmann.

A.F.T.R.A. v. Hoffman. As

friend of the court in support of

a labor union's appeal to the Fed-

eral Court of Appeals seeking to

set aside an injunction granted

by the district court. The ACLU

argues that the activity in ques-

tion-passing out handbills ask-

ing that members of the general

publie refrain from purchasing

the products of companies which

continue to advertise on the tele-

vision station with which the un-

ion has a labor dispute-is fully

protected by the First Amend-

ment and is not a secondary boy-

cott because it is not aimed at the

labor relations of the advertising

companies but only at the gen-

eral public as consumers of their

products. The brief was prepared

with the aid of volunteer at-

torney Thomas Schneider.

TEACHERS

Mack v. Board of Education. On

behalf of Mr. and Mrs. Wm.

Mack the ACLU has filed a pe-

tition for a writ of mandate

challenging the revocation of

their teaching credentials. They

are charged with lying when, in

their Levering Act oaths, they

denied past membership in an

organization advocating the vio-

lent overthrow of the govern-

ment. Prior to securing' their

credentials, the Macks had quit

the Communist Party which they

claim did not advocate violent

_ overthrow of the government.

Board of Trustees v. Owens.

The Superior Court of Lassen

county upheld the dismissal of

Jack Owens from his teaching

position at Lassen Junior College

on grounds of unprofessional con-

duct. Owens' misconduct con-

sisted of writing a series of five

letters to the editor of a Susan-

ville newspaper criticizing public

education in the county. The case

is now awaiting oral argument

before the Third District Court of

Appeal in Sacramento, The case

is being handled by former ACLU

Staff Counsel Albert M. Bendich.

Mass v. Board of Education. Al-

most eight years ago Mass was

fired by the San Francisco School

Board for failure to answer cer-

tain questions of the HCUA. The

dismissal was reversed by the

California Supreme Court and the

case was sent back to the lower

court for a new trial, The school

board delayed over three years

(during which time the ACLU

won a fight to require re-issuance _

. Sidney Dickstein.

of a teaching credential )and the

ACLU asked that the suit be

dismissed. An appeal has been

taken to the District Court of

Appeal (in the form of a peti-

tion for a writ of mandate) from

the refusal of the superior court

to dismiss the case. A decision is

being awaited.

Board of Education v. Han-

cock. A hearing will be held in

December to determine whether

the State Credentials Commis-

sion was correct in denying an

elementary teaching credential to

Patrick Hancock solely because

he refused to answer a special

questionaire concerning his po-

litical activities.

RACIAL DISCRIMINATION

Burks v. Poppy Construction

Co. In a case now pending in the

District Court of Appeal, Mr, and

Mrs. Seaborn Burks contend that

they were denied the right to

purchase a new house in a San

Francisco tract solely because

they are Negroes. The case will

decide the applicability of the

Unruh Civil Rights Act, which

forbids racial discrimination by

all businesses, to developers of

housing tracts. ;

Bangsal vy. Greyhound. Six

plaintiffs charge that defendants

Greyhound and Harrah's Club dis-

criminate on the basis of race on

their "special" busses to Nevada.

A preliminary injunction was

denied and the case is expected

to go to trial on the issue of

damages and a permanent injunc-

tion.

GOVERNMENT EMPLOYEES

. Eustace v. J. Edward Day, et al.

_ Eustace was dismissed as a San

Francisco postal clerk for lead-

ing informational picketing of the

main post office by members of

his union during non-working

hours. The Government's motion

for summary judgment was ~

granted by the U.S. District

Court in Washington, D. C., and

an appeal will now be taken. The

case is being handled by attorney

Alleged Homosexuals. The

ACLU is handling two cases of

government employees charged

with homosexual] conduct. In one

case, which is now pending on

rehearing before the Civil Serv-

ice Commission, derogatory. infor.

mation, obtained by spying and

invasion of privacy, even if true

had nothing to do with the em-

ployee's conduct on the job. In

the second case, a post office -

employee was charged with homo-

sexual conduct while he was in

the Air Force. The employee

contends that the charges were

made but not proved while he

was serving in the Air Force

and that he received a discharge

under Honorable Conditions. An

administrative appeal is pending.

POLICE PRACTICES

Goldberger v. Lewis. This suit

brought by two doctors against a

San Francisco policeman and the

City and County claims monetary

damages because of a false arrest

for vagrancy, The doctors were

forced to spend the better part of

an early morning in jail on a

spurious charge. The case is

awaiting trial in the superior

court.

Grace v. Dickson. In violation

of State law three prisoners now

at San Quentin were detained 10

days before being brought before

a magistrate. Durifig that time

confessions were secured. The

Federal Court of Appeals agreed

with the District Court that there

was no due process question

under the U.S. Constitution. An

appeal to the U.S. Supreme Court

is being considered.

Anderson v. Redwood City.

Payment for a cross in Redwood

City by public funds and its

erection On city-owned property

has been stalled pending trial of

a taxpayers' suit challenging

these practices as violating the

Continued on Page 4

ACLU Statement of Policy

Dangers inherent in disclosures made by college teachers

when questioned about students by government security

agents or private employers are stressed in a policy statement

released last month by the American Civil Liberties Union.

The statement appears as an article in the October 7, 1961

issue of School and Society. It

is entitled, "Teacher Disclosure

of Information About Students to

Prospective Employers."

Prepared by the Union's

. Academic Freedom Committee, -

headed by Professor Louis M.

--Hlacker, and adopted by the

ACLU national Board of Direc-

`tors, the statement represents

more than a year's study. The

complete text of the statement

follows:

Throughout the United States,

teachers at the university, col-

lege and secondary schools levels

are frequently asked by present

or prospective employers (gov-

ernmental and non-governmen-

tal), by graduate schools, and by

other agencies to furnish infor-

mation about their students.

Habituation to this proliferating

- process of interrogation and re-

sponse has tended to obscure

possible dangers to education.

The American Civil Liberties

Union in this statement seeks to

define standards of reasonable-

ness for questions and answers

in the hope that these standards

will gain wide institutional ac- ~

ceptance and provide support to

the individual. teacher who is

ealled upon to respond to in-

quiries regarding his students.

Balancing of Risks

It should be emphasized, at the

"outset, that resolution of the

problems involved requires a

weighing and balancing of risks.

On the one hand, it is clearly in

the social interest that each job,

so far as possible, be filled by

the person best qualified to do

so and, moreover, that in a sen-

sitive agency, lack of loyalty to

the United States should be a

disqualification.

Privacy of Communication

On the other hand, the profes-

sional relation between teacher

and student, like that between

lawyer and client or physician

and patient, presupposes-at

least within certain limits-the

privacy of the communication

involved. Once the lawyer or

physician or teacher is asked to

divulge the content of discourse

addressed to him in his profes-

sional capacity, such discourse

may be in danger of dissolution

from consequent fear and re-

straint. Needless to say, there

are significant differences be-

tween the situation of the teach-

er on the one hand and that of

"the physician or lawyer on the

other. It is because of the public

and vocational aspects of educa-

tion that the teacher is con-

fronted with the problem of dis-

closing information about indi-

vidual students. In his role as

patient or client, a person seeks

aid. In his role as student, he

likewise seeks aid; but he also

becomes subject to estimation or

- appraisal. Government, industry,

or the academic world may wish

to rate him; and they often rate

him on the basis of his teachers'

judgment. Moreover, a classroom

is not given over to the same

kind of "confidential" discussion

that prevails in the chambers of

the lawyer, the physician, or the

clergyman. It is not private in

the same sense: in the classroom

there are ordinarily many stu-

dents, and sometimes there are.

observers.

Difficult to Map Boundaries

But the teacher-student rela-

tion, like education in general,

is not limited to the classroom.

It can obtain informally and

outside of curricular activities.

It is not confined to customary

subject-matters or to academic

"fields." The views of students

on. any issue whatsoever, wheth-

er they are expressed in a group

or in face-to-face conversation,

ean be accepted by the teacher

in a spirit of inquiry. In other

words, it is difficult to map the

boundaries of the teacher-student

relation.

-Those who think of education

primarily as the delivery of in-

formation by teachers to students

will find no problem here. But if

probing, sharing and hypothesiz-

ing are regarded as essential; if

education requires uninhibited

expression and thinking out

loud; and if tentative or spon-

taneous ideas are to be en-

couraged as conductive to learn-

ing, then disclosure of expressed

opinion, or even disclosure based

on expressed opinion, can become

a threat to the educational pro-

cess. 2

Privileged Relationship

The teacher-student relation is

therefore a privileged one. The

student does not normally ex-

pect that his utterances in the

classroom, or his discussions

with teachers, j

views will be reported outside

the college or school community.

He may, for example, expect, as

the client and patient often do,

that what he says will be re-

vealed to a professional col-

league. And he considers this

permissible, because he tacitly

assumes that the area of confi-

dence is being extended for good

reasons. But if he knew that any-

thing he said or wrote might be

revealed indiscriminately, the

kind of relation which he origin-

ally felt free to make his pro-

nouncement would be to all in-

tents and purposes cease to exist.

In any problem, then, concern-

ing the legitimacy of profession-

al disclosures, the vital consider-

ation seems to be: What types of

disclosure might jeopardize the

integrity of relations that are

basic to civilized life-such as

legal consultation, professional

therapy, and the educational

process? :

Need for a Policy

In his desire to assist govern-

ment agencies in protecting the

public interest, the teacher is

likely to experience the apparent

dilemma of doing either disserv-

ice to the community or disserv-

ice to his students, of violating

either his obligation as citizen

or his obligation as teacher. He (c)

often finds himself responding

to interrogation vaguely, wonder-

-ing why he is compromising his

standards of exactness. In view

of these disturbing experiences,

there is need for an academic

policy that will guide the indi-

vidual teacher's discretion. The

teacher should have the oppor-

tunity to invoke universal prin-

ciples of his profession releas-

ing him from answers to ques-

tions that threaten the integrity

of academic communication,

Such principles cannot be set

forth in the manner of detailed

prescriptions. It is entirely un-

derstandable that a teacher

should resent being given a list

of instructions. The present

-Continued on Page 4

or his written

ACLU |

Loses [Three

lembers

The ACLU last month suffered

- the loss of three valuable board

members `through resignations.

The three who resigned are

Richard. De Lancie of San Ma-

teo, Mrs. Zora Cheever Gross of

San Francisco and Dr. Harold

Winkler of Berkeley.

Mr. DeLancie is President of

Broadview Research Corporation

in Burlingame; he has been on

the board for four years. The

demands of business have called

him to Cambridge, Massachusetts

until next September.

Mrs: Gross has served on the

board for five years. She is going .

to be missed very sorely in the

regular Spring membership cam-

paign which she has headed for

the past few years with great _

success. Mrs. Gross will spend

most of the next year in Europe

and Seattle.

Dr. Winkler has served on the

board only during the past year.

He has also resigned his position

as President of Pacifica Founda-

tion, which operates three F.M

stations, including Station KPFA

in Berkeley. Dr. Winkler will be

traveling in the Pacific area for

at least a year.

The board regretfully accepted

the three resignations with ex-

pressions of appreciation for

the loyal and valuable service all

three gave to the organization.

The question of filling five exist-

ing vacancies has been referred

to a special Nominating Commit-

tee. .

The Board of Directors of the American Civil Liberties

Union of Northern California last month approved a budget

of $54,372.20 for the fiscal year beginning November 1, 1961.

This is an increase of exactly $3,023.23 over the last budget.

In order to raise this budget, the ACLU office late last month

sent letters to all ACLU sup-

porters, except those who con-

tributed during the past couple

PROF. HERBERT L. PACKER

of Stanford Law School, new member

of ACLU Board.

27th Annual Meeting Sheds

Light on Radical Right

About 550 members met for the 27th anniversary of the

ACLU in northern California on Friday evening, October 13,

in the congenial surroundings of the Hall of Flowers in

Golden Gate Park.

Worse Today Than In 1954

They heard Edith Green, Con-

gresswoman from Oregon, give

a vivid picture of "the unholy

alliance" of right-wing political

groups, religious fundamentalists

and the military. Seeing this

trend as "worse today than in

1954," the height of McCarthy-

ism, Mrs. Green described the

flood of mail coming into. Con-

gress "spewing forth hatred ...

anti-Jewish, anti-Catholic and

anti-Negro." They brand every-

thing-federal aid to education,

public housing, medical aid to

the aged, foreign aid, statehood

for Alaska and Hawaii, water

flouridation and whatever they

oppose-as "Communist plots."

Both as a prime mover in seek-

ing to eliminate the loyalty oath

from the National Defense Edu-

eation Act and as one of the six

members of the House of Repre-

sentatives to vote against appro-

priating funds for the House Un-

American Activities Committee

in the last session, Mrs. Green

received untold quantities "of

mail telling me I was a dupe or

worse."

Dangerous Signs

To her the particularly dan-

gerous signs in this current

movement are: (1) the extreme

right's lack of a focal figure-it

is a segmented but highly organ-

ized development that the defeat

of one person will not weaken;

(2) the "utter contempt for self-

government" expressed in the

"indiscriminate labeling of citi-

zens as traitors"'-"the most un-

American phenomenon in the

political scene today;" and (3)

liberals' tendency to underesti-

mate the right-wing's strength in (c)

influencing public opinion,

Eternal Vigilance Needed

Asked how this "unholy. alli-

ance" could be defeated, Mrs.

Green immediately responded

with "eternal vigilance" by those

who believe in the Constitution

and freedom. She challenged

liberals to be "as willing to work

as many hours a day for what

they believe as are the rightists.

"I'm so tired of people who re-

-fuse to stick their necks out and

let someone else take all the

blame for speaking up."

Besig Reports

Ernest Besig, the ACLU's

executive director, preceded

Mrs. Green on the evening's pro-

gram with a report of this year's

work. He pinpointed local mani-

festations of a resurgent McCar-

thyism as "the most significant

development in the field of civil

liberties in northern California

during the past year." Among the

incidents he mentioned were: the

recent "poison-pen attack upon

an Orinda Episcopal clergyman

as being soft on Communism;"

a PTA meeting in Belmont "at

which a group of well-trained

zealots sowed the seeds of fear,

suspicion, hatred and_ intoler-

ance;" the warped approach and

hysterical character of "The

Facts of Communism" meetings

being conducted in Berkeley by

the Adult High School; and con-

tinuing attacks against school

teachers, metropolitan planning

projects, meetings and organiza-

tions as "Communist."

Review of Cases

Mr. Besig reviewed cases

handled by the ACLU during the

past year, emphasizing that

"we're still handling the kind

of business that causes the un-

thinking and the malicious to

call us names." He reported the

ACLU northern California mem-

bership at the all-time high of

5140 on September 30. Noting

the organizational growth of the

chapter system, Mr. Besig con-.

cluded, "it will certainly mean

greater participation in ACLU

work by the membership."

Howard A. Friedman, newly

elected chairman, presided at

the meeting -J. H.

of months, soliciting their contri-.

butions.

The increase in the budget re-

sults mainly from replacing a

3/5ths time stenographer with a

full-time worker, modest salary

increases, providing hospitaliza-

tion for employees for the first

time and an $800 increase in the

postal allottment. In 1961-1962

the office will be staffed by five

full-time employees, not to men-

tion the many volunteers.

Contribute in November

The board hopes that as far

as possible all members will make

their budget contributions during

November. Thus, by concentrat-

ing the ACLU's fund-raising ac-

tivities at the beginning of the

fiscal year, it not only allows

proper financial planning but re-

sults in a minimum of inter-

ference with the job of defending

civil liberties.

The ACLU receives no support

from any foundation, the United

Crusade, financial angels or the

Union's national office. Money

that is sent to the ACLU in New

York is not returned here to

meet local needs. ,

How Much Should You Give?

In short, all of the money that

is used by the ACLU of Northern -

California in meeting its operat-

ing costs is raised by this branch

from its local members and

friends. On the basis of its pres-

ent membership, the ACLU

needs an average contribution of

more than $10 to raise the $52,000

hoped for from the membership.

Of course, some members cannot

afford to give more than the

minimum dues, so many larger

gifts are necessary in order to

balance the smaller contributions.

The ACLU expects to raise the

remaining $2,372.20 from interest

and dividends, special gifts, me-

morial contributions, notary fees,

the sale of literature and mis-

eellaneous income.

Last year, 1478 of the Union's

supporters made their contribu-

tions in November, and every

year the November response

grows larger. So even if your

membership does not expire just

now, the ACLU hopes you will be

willing to make your present and

future coritributions in Novem-

ber. Your cooperation is earnestly

solicited.

The Budget

Here is the way your money

will be spent:

Salaries:

Executive Director _...$10,600.00

Staff Counsel] _............. 7,950.00

Membership and

Chapter Director .... 5,700.00

Legal Secretary ........ 5,040.00

Stenographer .............. 4,540.00

Extra Help .................. 1,028.70

Retirement ............ ae. 741.30

Hespitalization .............. 600.00

ACLU News .............------- 2,850.00

Printing and Stationery 3,888.20

Rent 2. 2 3,755.00

Postave 23. 3,400.08 5

Telephone and Soe

Telegraph ____............-- 1,400.00

Taxes and Insurance .... 1,224.00

Travel and

Transportation .......... 855.00

Furniture and

Equipment ........---..-- -- 200.00

Publications ............-.------ 200.00

Miscellaneous ...........--.-. 100.00

AUGiG 2 ee 300.00

TOTAL 3235. $54,372.20

ACLU NEWS

November, 1961

Page 3

_ In two separate appearances before the Subcommittee on

Changes Urged In Federal Law

Constitutional Rights of the Senate Judiciary Committee, the

American Civil Liberties Union recently urged legislative

action to remedy the frequent denial of due process of law

to the mentally ill.

Automatic Commitment

Professor Richard Arens made

the first ACLU appearance.

Speaking about automatic com-

mitment to mental hospitals as

a result of an insanity defense

in a criminal case, Prof. Arens

-assailed the Lynch decision,

which is now the controlling case

law for all such situations. He

declared, "If the doctrine of this

case which endows the Govern-

ment with the right of foisting

an insanity defense upon an un-

willing and competent defend-

ant is maintained, the lifelong

liberty of every citizen brought

into court upon the basis of a

parking ticket, or of any other

accusation of crime, would ap-

pear in jeopardy." Prof. Arens

pointed out that automatic com-

mitment in criminal cases "is

possible upon no showing other

than that of a reasonable doubt

concerning mental health as of

the time of some past event. No

. hearing is called for to determine

- whether the defendant is pres-

ently ill or dangerous, The loss

of human liberty takes place un-

der these circumstances in de-

fiance of the most elemental con-

ceptions of due process of law

as they have been understood

through the years." -

Civil Commitment Proceedings

The ACLU statement declared

that "civil commitment proceed-

ings, in their turn, also leave

much to be desired in providing

the safeguards against abuse and

improvident or malicious action

which a free citizenry has a right

to expect under its laws." Prof.

Arens also commented on "the

fact that there is no clear-cut

statutory or judicial requirement

which exacts the adequate and

humane treatment of those who

are committed to a mental hos-

pital."

The Law in D.C.

Lawrence Speiser, director of

the ACLU Washington office,

- testified at the Subcommittee's

hearing on the automatic com-

mitment law in the District of

Columbia. The D.C. code pro-

vides, Speiser declared, "that a

person acquitted solely by reason

of insanity shall be confined in

a hospital for the mentally ill.

His present mental condition is .

utterly irrelevant. Even if the

criminal charge was a trifling

one, absolutely no discretion is

left to a court to exercise inde-

pendent judgment as to whether

a particular defendant should be

committed or is even in need of

psychiatric treatment at the time

of trial. The defendant is denied

any opportunity to .be heard

upon the subject of his mental

health and is subject to such

automatic commitment even if he-

is capable of showing that he is

(a) no longer mentally ill, (b)

not dangerous to himself or oth-

ers, and (c) that, even if men-

tally ill, confinement in a men-

tal hospital is contra-indicated

under accepted standards of psy-

-chiatfic treatment."

The ACLU believes, Speiser

continued, that such a procedure

ACLU NEWS

November, 1961

Page 4

violates due process since the

accused is confined without an

opportunity for a hearing and

a defense on the issue of his

present insanity. Moreover he

cannot secure such a hearing by

petitioning for a writ of habeas

corpus.

Recommendations for D.C.

The ACLU made several rec-

ommendations with respect to

the specific situation in Washing-

ton, D.C. and also throughout

the nation. It suggested that the

D.C. automatic commitment law

be repealed and replaced by a

post-acquittal statute, submitted

by the Union-which is similar

to those in force in at least 18

states. Under this statute any

person acquitted on the grounds

of insanity at the time the crime

was committed may be ordered

by the court to a mental hospi-

tal for examination and observa-

tion for no more than 10 days;

if the person is found to be

mentally ill, a danger to himself

and others in the commission of

violent crimes and in need of

institutional treatment, the court

shall refer the case to the Com-

mission on Mental Health for

commitment proceedings. If,

after examination and observa-

tion, the person is not found to

be mentally ill, nor a danger to

himself or to others in the com-

mission of violent crimes, nor

in need of institutional mental

treatment, the court shall order

the person discharged.

National Level

On the national level, the

ACLU told the Subcommittee,

Congress should legislatively act

in these ways: (1) "prevent the

forcible imposition of the insani-

ty defense upon a competent de-

fendant who chooses to reject it,"

(2) guarantee a hearing as to

"present mental illness and dan-

gerousness after an acquittal by

reason of his insanity and as a

caution precedent to the enforced

mental hospitalization of the de-

fendant;" (3) guarantee the right

of independent psychotic verifi-

cation of the claim of mental ill-

ness in any civil or criminal

commitment and the right to

challenge judicial commitment

within five days; (4) assure

standards of public mental hos-

pital care and periodic and fre-

quent inspection of public hospi-

tal facilities by a federal inspec-

tor; (5) declare the right of a

mental patient to challenge his

continual confinement in a men-

tal hospital by habeas corpus

twice a year and for more fre-

quent hearings upon a prima

facie showing of extraordinary

cause.

"Not Tonite,

Henry" Obscene

In Modesto

District Attorney Alexander

Wolfe of Stanislaus county last

month filed obscenity charges

against the operators of the down-

town Covell Theatre in Modesto

for showing "Not Tonite, Henry."

The movie showed for six weeks

in San Francisco without in-

cident. The district attorney is

quoted as saying, "I wouldn't

want my 21-year-old daughter to

see that picture." |

Francis Biddle

New ACLU Nat'l

Comm. Chairman

The election of Francis Biddle,

Attorney General of the United

States from 1941-45, as chairman

of the National Committee of

the American Civil Liberties Un-

on was announced recently by

_ Ernest Angell, chairman of the

ACLU Board of Directors. Mr.

Biddle succeeds the former Ern-

est Boyd MacNaughton, who

served as chairman of the Na-

tional Committee for six years,

until his death in 1960,

After his graduation from Har-

vard in 1909 and later from Har-

vard Law School, Mr. Biddle

served as secretary to Justice

Holmes of the United States

Supreme Court, His recently pub-

lished autobiography, "A Casual

Past," covers his childhood, youth

and young manhood, and, in the

words of one reviewer, "is con-

cerned with the effort of a non-

conformist not to listen to the

Siren voice of a socially impec-

cable family background." It is

his sixth book,

A former national chairman of

Americans for Democratic Action,

Mr. Biddle is currently chairman

of the Franklin Delano Roosevelt

Memorial Commission and a

member of the Board of Trustees

of the Twentieth Century Fund.

He has been a member of the

Union's National Committee since

1949, and its District of Columbia

vice-chairman.

ACLU

Docket

Continued from Page 2-

guarantee of separation of

Church and State, The trial has

been postponed to allow the City

to determine whether it wants to

go ahead with the project.

ARMED FORCES SECURITY

CASES

D.R., a member of the un-

organized Army reserve, faces an

undesirable discharge for alleged

associations which occurred after

he served his two-year hitch in

the Army. A Field Board hearing

has been requested.

D.T, was discharged from the

Marine Corps for fraudulent en-

listment although he was charged

and tried for "alleged conduct

or association casting doubt upon

his loyalty." A suit has been

filed in the U.S, District Court

in Washington, D. C., by Sidney

Dickstein of Dickstein and Shapiro.

MISCELLANEOUS 2

A.K., a native-born American

citizen, is claimed by the immi-

gration authorities to have lost

his citizenship because he par-

ticipated in a Russian election

while living there in the mid-

1930s. The ACLU claims that the

man was forced to vote in the

election and further that the ex-

patriatory act took place while

he was under 21 and is thus in-

effective. Suit pending in U-S.

District Court. :

San Francisco v. Harper. Mrs.

Harper was billed $182.00 after

she had forcibly spent seven

days in S. F. Hospital on a

mental illness petition filed by

her brother. She was discharged

as not in need of treatment. The

suit is awaiting trial.

Edgar Sokol had his phones

summarily removed from his

place of business on the un-

verified complaint of a police of-

ficer, As described elsewhere in

this issue, his case is now pending

before the Public Utilities Com-

mission,

Lundquist v. MEBA. Frank

Lundquist was finally reinstated

to his union after a long trial in

the superior court, but the judge

failed to award him damages for

the wrongful exclusion and loss

of earnings. The case is now pend.

ing in the District Court of Ap-

peal.

On Teachers Disclosing

Information About Students

Continued from Page 3- |

statement is not to be construed

as legislating behavior or as ex-

posing individual malpractices.

On the contrary, it is designed

to reflect the problems of com-

mon academic experience,

`Competence and Fitness

When interrogated directly by

prospective employers of any

kind, public or private, or in-

directly by the institution's ad-_

ministrative officers in behalf of

prospective employers, a teacher

can safely answer questions

which he finds to be clearly con-

cerned with the student's com-

petence and fitness for the job.

There is always the chance that

even questions of this kind will

- here or there covertly require the

teacher to violate academic pri-

vacy. Questions and answers in

written form make it easier to

avoid pitfalls, but the teacher's -

alertness is always essential. Or-

dinarily, questions relating to

what the student has demon-

strated as a student - for ex-

ample, the ability to write in a

certain way, to solve problems of

a certain kind, to reason con-

sistently, to direct personnel or

projects-pose no threat to edu-

cational privacy. But, questions

relating to the student's loyalty

and patriotism, his political or

religious or moral or social be-

liefs and attitudes, his general

outlook, his private life, may well

jeopardize the teacher-student

relation.

Personal Evaluations

The Union stresses this danger

even though it recognizes that

' there may be much important in-

formation which a teacher has

acquired about a student, and

that teachers are often the best

possible judges-on the basis of

contacts both inside and outside

the classroom-of a student's de-

velopment during the years im-

mediately preceding employ-

ment. On the other hand, most

teachers know how difficult it is,

at best, to appraise students per-

sonally. The rapid changes that

take place in a young person's

life, and lack of access to the full

environmental context of these

changes, often make it desirable

to suspend judgment, quite apart

- from interrogation by employers.

Communications to a Colleague -

In the exchange of profession-

al information among colleagues

within a college, secondary

school, or university, it is often

necessary and justifiable to

widen the normal sphere of dis-

closure-for reasons already

given. Just what should be com-

municated to a colleague will de-

pend partly upon academic tra-

dition and partly upon the dis-

cretion and professional respon-

sibility of the teacher. Disclosure

based on this criterion is inter-

nal to the educational process,

and is inherent in the basic un-

derstanding upon which the stu-

dent enters the academic world.

In the academic framework cer-

tain types of information are sub-

ject to much less ambiguous in-

terpretation than in a framework

where they are linked to all pos-

sible varieties of partisan in-

terest.

: Safeguard

As a safeguard from the dan-

ger of putting the student in an

unfavorable light with govern-

ment representatives or employ-

ers of any category, simply as a

result of the fact that some ques-

tions are answerable and others

are not, teachers can preface

each questionnaire with a brief

pro forma.statement that the

academic policy to which they

subscribe makes it inadvisable

to answer certain types of ques-

tions, no matter who the _ indi-

vidual student may be. Once

this academic policy becomes

widespread presumptive infer-

ences about individual students

would no longer be made by em-

ployers.

Student's Wishes Irrelevant

Whether or not the student

wishes his teacher in a given in-

stance to disclose details which

adherence to general academic

principles would leave undis-

closed, seems irrelevant. Per- -

sonal expediency of this kind -

has uncertain consequences and

does not seem justifiable as an

exception to warranted policy.

This choice again involves a

balancing of risks. An individual

student might benefit from hav-

ing his teacher answer questions

about him fully; yet a satisfac-

tory principle would not admit

ad hoc violations of academic

sanctuary. ~.

The Union points out that

public and private employers

(actual and prospective) are al-

ways free to avail themselves of

varied screening procedures and

sources of information which can

be utilized without injury to the

teacher-student relation.

No Conflict with Gov't. Security

There is no reason to believe

that the preservation of goverii: -

ment security is at variance with

the integrity of the academic

process. A climate of free in-. .

quiry and learning may be ex-

pected to make loyalty firmer

-and more meaningful, and to dis-.

courage clandestine tactics. The

society which subordinates

academic freedom to security

precautions faces many more

problems than it solves. "... The

perfection of machinery to which

it has sacrificed everything, will

in the end avail it nothing for

want of the vital power which,

in order that the machine might

work more smoothly, it has pre-

ferred to banish:'"*

*John Stuart Mill, Essay on Lib-

erty, 1859.

Marin Board Meeting

The Marin Chapter board will

meet Monday evening, November

27 at 8 p.m., at the home of Dr.

Morton Rubinstein, 27 Midway,

Mill Valley. All members are

welcome.

The first right of a citizen

Is the right

Te be responsible.

AMERICAN CIVIL LIBERTIES

JOIN TODAY

UNION

OF NORTHERN CALIFORNIA

Patron Membership... 60.0.5 65 ss on on os os. 1 $100

Sustaining Membership... 0... ee

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50

12

10

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