|Ambach v. Norwick
417 F.Supp. 913, reversed.
[ Powell ]
[ Blackmun ]
Ambach v. Norwick
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting.
Once again the Court is asked to rule upon the constitutionality of one of New York's many statutes that impose a [p82] requirement of citizenship upon a person before that person may earn his living in a specified occupation. [n1] These New York statutes, for the most part, have their origin in the frantic and over-reactive days of the First World War when attitudes of parochialism and fear of the foreigner were the order of the day. This time we are concerned with the right to teach in the public schools of the State, at the elementary and secondary levels, and with the citizenship requirement that N.Y.Educ.Law § 3001(3) (McKinney 1970), quoted by the Court ante at 70 n. 1 imposes. [n2]
As the Court acknowledges, ante at 72, its decisions regarding the permissibility of statutory classifications concerning aliens "have not formed an unwavering line over the years." [n3] Thus, just last Term, in Foley v. Connelie, 435 U.S. 291 (1978), the Court upheld against equal protection challenge the New York statute limiting appointment of members of the state police force to citizens of the United States. The touchstone, the Court indicated, was that citizenship may be [p83] a relevant qualification for fulfilling
"important nonelective executive, legislative, and judicial positions" held by "officers who participate directly in the formulation, execution, or review of broad public policy."
Id. at 296, quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973). For such positions, a State need show only some rational relationship between the interest sought to be protected and the limiting classification. Police, it then was felt, were clothed with authority to exercise an almost infinite variety of discretionary powers that could seriously affect members of the public. 435 U.S. at 297. They thus fell within the category of important officers who participate directly in the execution of "broad public policy." The Court was persuaded that citizenship bore a rational relationship to the special demands of police positions, and that a State therefore could constitutionally confine that public responsibility to citizens of the United States. Id. at 300. The propriety of making citizenship a qualification for a narrowly defined class of positions was also recognized, in passing, in Sugarman v. Dougall, 413 U.S. at 647, and in Nyquist v. Mauclet, 432 U.S. 1, 11 (1977).
On the other hand, the Court frequently has invalidated a state provision that denies a resident alien the right to engage in specified occupational activity: Yick Wo v. Hopkins, 118 U.S. 356 (1886) (ordinance applied so as to prevent Chinese subjects from engaging in the laundry business); Truax v. Raich, 239 U.S. 33 (1915) (statute requiring an employer's workforce to be composed of not less than 80% "qualified electors or native-born citizens"); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (limitation of commercial fishing licenses to persons not "ineligible to citizenship"); Sugarman v. Dougall, supra, (New York statute relating to permanent positions in the "competitive class" of the state civil service); In re Griffiths, 413 U.S. 717 (1973) (the practice of law); Nelson v. Miranda, 413 U.S. 902 (1973), summarily aff'g 351 F.Supp. 735 (Ariz.1972) (social service worker [p84] and teacher); Examining Board v. Flores de Otero, 426 U.S. 572 (1976) (the practice of civil engineering). See also Nyquist v. Mauclet, supra, (New York statute barring certain resident aliens from state financial assistance for higher education).
Indeed, the Court has held more than once that state classifications based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372 (1971). See Examining Board v. Flores de Otero, 426 U.S. at 601-602; In re Griffiths, 413 U.S. at 721; Sugarman v. Dougall, 413 U.S. at 642; Nyquist v. Mauclet, 432 U.S. at 7. And "[a]lienage classifications by a State that do not withstand this stringent examination cannot stand." Ibid.
There is thus a line, most recently recognized in Foley v. Connelie, between those employments that a State, in its wisdom, constitutionally may restrict to United States citizens, on the one hand, and those employments, on the other, that the State may not deny to resident aliens. For me, the present case falls on the Sugarman-Griffiths-Flores de Otero-Mauclet side of that line, rather than on the narrowly isolated Foley side.
We are concerned here with elementary and secondary education in the public schools of New York State. We are not concerned with teaching at the college or graduate levels. It seems constitutionally absurd, to say the least, that, in these lower levels of public education, a Frenchman may not teach French or, indeed, an Englishwoman may not teach the grammar of the English language. The appellees, to be sure, are resident "aliens" in the technical sense, but there is not a word in the record that either appellee does not have roots in this country or is unqualified in any way, other than the imposed requirement of citizenship, to teach. Both appellee Norwick and appellee Dachinger have been in this country for [p85] over 12 years. Each is married to a United States citizen. Each currently meets all the requirements, other than citizenship, that New York has specified for certification as a public school teacher. Tr. of Oral Arg. 4. [n4] Each is willing, if required, to subscribe to an oath to support the Constitutions of the United States and of New York. [n5] Each lives in an American community, must obey its laws, and must pay all of the taxes citizens are obligated to pay. Appellees, however, have hesitated to give up their respective British and Finnish citizenships, just as lawyer Fre Le Poole Griffiths, the subject of In re Griffiths, supra, hesitated to renounce her Netherlands citizenship, although married to a citizen of the United States and a resident of Connecticut.
But the Court, to the disadvantage of appellees, crosses the line from Griffiths to Foley by saying, ante at 75, that the
distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.
It then concludes that public school teaching "constitutes a governmental function," ibid., and that public school teachers may be regarded as performing a task that goes "to the heart of representative government." Ante at 76. The Court speaks of the importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which [p86] our society rests. [n6] After then observing that teachers play a critical part in all this, the Court holds that New York's citizenship requirement is constitutional because it bears a rational relationship to the State's interest in furthering these educational goals.
I perceive a number of difficulties along the easy road the Court takes to this conclusion:
First, the New York statutory structure itself refutes the argument. Section 3001(3), the very statute at issue here, provides for exceptions with respect to alien teachers "employed pursuant to regulations adopted by the commissioner of education permitting such employment." Section 3001-a (McKinney 1970) provides another exception for persons ineligible for United States citizenship because of oversubscribed quotas. Also, New York is unconcerned with any citizenship qualification for teachers in the private schools of the State, even though the record indicates that about 18% of the pupils at the elementary and secondary levels attend private schools. The education of those pupils seems not to be inculcated with something less than what is desirable for citizenship and what the Court calls an influence "crucial to the continued good health of a democracy." Ante at 73. The State, apparently under § 3001(3), would not hesitate to employ an alien teacher while he waits to attain citizenship, even though he may fail ever to attain it. And the stark fact that the State permits some aliens to sit on certain local school boards, N.Y.Educ.Law 2590-c(4) (McKinney Supp. 1978-1979), reveals how shallow and indistinct is New York's line of demarcation between citizenship and noncitizenship. The Court's attempted [p87] rationalization of this fact, ante at 81-82, n. 15, hardly extinguishes the influence school board members, including these otherwise "disqualified" resident aliens, possess in school administration, in the selection of faculty, and in the approval of textbooks and instructional materials.
Second, the New York statute is all-inclusive in its disqualifying provisions: "No person shall be employed or authorized to teach in the public schools of the state who is . . . [n]ot a citizen." It sweeps indiscriminately. It is "neither narrowly confined nor precise in its application," nor limited to the accomplishment of substantial state interests. Sugarman v. Dougall, 413 U.S. at 643. See Note, Aliens' Right to Teach: Political Socialization and the Public Schools, 85 Yale L.J. 90, 109-111 (1975).
Third, the New York classification is irrational. Is it better to employ a poor citizen teacher than an excellent resident alien teacher? Is it preferable to have a citizen who has never seen Spain or a Latin American country teach Spanish to eighth graders and to deny that opportunity to a resident alien who may have lived for 20 years in the culture of Spain or Latin America? The State will know how to select its teachers responsibly, wholly apart from citizenship, and can do so selectively and intelligently. [n7] That is the way to [p88] accomplish the desired result. An artificial citizenship bar is not a rational way. It is, instead, a stultifying provision. The route to "diverse and conflicting elements" and their being "brought together on a broad but common ground," which the Court so emphasizes, ante at 77, is hardly to be achieved by disregarding some of the diverse elements that are available, competent, and contributory to the richness of our society and of the education it could provide.
Fourth, it is logically impossible to differentiate between this case, concerning teachers, and In re Griffiths, concerning attorneys. If a resident alien may not constitutionally be barred from taking a state bar examination, and thereby becoming qualified to practice law in the courts of a State, how is one to comprehend why a resident alien may constitutionally be barred from teaching in the elementary and secondary levels of a State's public schools? One may speak proudly of the role model of the teacher, of his ability to mold young minds, of his inculcating force as to national ideals, and of his profound influence in the impartation of our society's values. Are the attributes of an attorney.any the less? He represents us in our critical courtroom controversies even when citizenship and loyalty may be questioned. He stands as an officer of every court in which he practices. He is responsible for strict adherence to the announced and implied standards of professional conduct, and to the requirements of evolving ethical codes, and for honesty and integrity in his professional [p89] and personal life. Despite the almost continuous criticism leveled at the legal profession, he, too, is an influence in legislation, in the community, and in the role-model figure that the professional person enjoys. [n8] The Court specifically recognized this in In re Griffiths:
Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country.
413 U.S. at 729. [n9]
If an attorney has a constitutional right to take a bar examination and practice law, despite his being a resident alien, it is impossible for me to see why a resident alien otherwise completely competent and qualified, as these appellees concededly are, is constitutionally disqualified from teaching in the public schools of the great State of New York. The [p90] District Court expressed it well and forcefully when it observed that New York's exclusion "seems repugnant to the very heritage the State is seeking to inculcate." Norwick v. Nyquist, 417 F.Supp. 913, 922 (SDNY 1976). I respectfully dissent.
1. One of the appellees in Nyquist v. Mauclet, 432 U.S. 1 (1977), submitted a list of the New York statutes that required citizenship, or a declaration of intent to become a citizen, for no fewer than 37 occupations. Brief for Appellee Mauclet, O.T. 1976, No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of those statutes have been legislatively repealed or modified, or judicially invalidated. Others are still in effect. Among the latter are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal technician.
2. This particular citizenship requirement had its origin in 1918 N.Y.Laws, ch. 158, effective Apr. 4, 1918.
3. "To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one." In re Griffiths, 413 U.S. 717, 720 (1973).
4. Appellee Norwick is a summa cum laude graduate of a Massachusetts college, and received an A average in full-time graduate work in the State University of New York at Albany. She has taught both in this country and in Great Britain.
Appellee Dachinger is a cum laude graduate, with a major in German, of Lehman College, a unit of the City University of New York, and possesses a master's degree in Early Childhood Education from that institution. She has taught at a day-care center in the Bronx.
Each appellee, thus, has received and excelled in educational training the State of New York itself offers.
5. See In re Griffiths, 413 U.S. at 726 n. 18.
6. One, of course, can agree with this observation. One may concede, also, that public schools are an "‘assimilative force' by which diverse and conflicting elements in our society are brought together on a broad but common ground," ante at 77, and that the inculcation of fundamental values by our public schools is necessary to the maintenance of a democratic political system.
7. In In re Griffiths, the Court significantly has observed:
Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law. Connecticut can, and does, require appropriate training and familiarity with Connecticut law. Apart from such tests of competence, it requires a new lawyer to take both an "attorney's oath" to perform his functions faithfully and honestly and a "commissioner's oath" to "support the constitution of the United States, and the constitution of the state of Connecticut." Appellant has indicated her willingness and ability to subscribe to the substance of both oaths, and Connecticut may quite properly conduct a character investigation to insure, in any given case,
that an applicant is not one who "swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath." Bond v. Floyd, 385 U.S. 116, 132.
Law Students Research Council v. Wadmond, 401 U.S. at 164. Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of post-admission sanctions extends from judgments for contempt to criminal prosecutions and disbarment. In sum, the Committee simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards.
413 U.S. at 725-727 (footnotes omitted).
8. See also Stockton v. Ford, 11 How. 232, 247 (1851); Hickman v. Taylor, 329 U.S. 495, 514-515 (1947) (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 247 (1957) (concurring opinion); In re Sawyer, 360 U.S. 622, 668 (1959) (dissenting opinion); J. Story, Miscellaneous Writings, Value and Importance of Legal Studies 503-549 (W. Story ed.1972); Stone, The Public Influence of the Bar, 48 Harv.L.Rev. 1 (1934); W. Brennan, The Responsibilities of the Legal Profession, Address before the Law School of Harvard University (1967); A. de Tocqueville, Democracy in America 321-331 (Schocken ed.1961); J. Rogers, The Lawyer in American Public Life, in Morrison Foundation Lectures 41, 61 (1940).
9. In order to keep attorneys on the nongovernmental side of the classification line, the Court continued:
Yet they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of govern ment policy.