vol. 12, no. 4

Helen A. Salz

`Mrs. A. K. Salz

3838 Clay St.

~ceeds will Communism lose its appeal.

American

Civil Liberties

Union -News

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Free Press |

Free Speech -

Free Assemblage

"Eternal vigilance is the price of liberty."

Vol. XII.

SAN FRANCISCO, APRIL, 1947

No. 4

Baldwin On Civil Liberties

Mission To Japan and Korea

Roger N. Baldwin, director of the American

Civil Liberties Union, sailed from San Francisco

on March 28 for Japan and Korea for a *wo

months' survey of civil liberties in cooperation

with U. S. authorities. He will also represent

two international agencies in establishing con-

tacts and local affiliates; the International League

for the Rights of Man and the World Federation

of United Nations Associations.

Mr. Baldwin is board chairman of the Inter-

national League which has just been recognized |

as a consultative agency by a United Nations

Economic and Social Council committee. The

World Federation of United Nations Associations,

with headquarters in London, is headed by Jan

Masaryk, Foreign Minister of Czechoslovakia. Its

U.S. affiliate is the American Association for the

United Nations directed by Clark Ejichelberger.

Mr. Baldwin plans to aid in establishing national

affiliates of those agencies also in China and the

Philippines. He will also act as a special repre-

sentative of fhe Japanese-American Citizens'

League.

`The Union's announcement of Mr. Baldwin's

trip stated that he had been "invited by General

Headquarters in Tokyo to serve as a consultant

to the War Department on civil liberties, but has (c)

arranged rather to go independently in an `un-

official capacity with the necessary War Depart-

ment cooperation in order to represent the non-

governmental agencies with which he is con-

nected." The statement added that `while the

ACLU appreciates the compliment of the invi-

tation to its director to serve officially, it appears

that both the services requested by the War De-

partment and the more general purpose of assist-

ing democratic forces in Japan and Korea can be

better accomplished in an unofficial role."

Mr. Baldwin said that he expected to make re-

ports of his survey to the occupation authorities,

the ACLU, and the international agencies. He

declared: ``the ACLU is under the obvious ob-

ligation of assisting in applying the principles of

our Bill of Rights wherever U. S. responsibility

extends. These principles are clearly challenged

in the Far East not only by Communism but by

the enormous tasks of reconstructing a shattered

economy. It is clear that only as democracy suc-

These

especially critical issues in the Far East under

American control justify a leave of absence from

our not inconsiderable job of extending civil lib-

erties at home."

MEMBERS HEAR ROGER BALDWIN

On short notice and in the face of attractive

competing meetings, more than two hundred

members and friends of the Civil Liberties Union

assembled at the California Club in San Fran-

cisco, Tuesday evening, March 25, to hear Roger

Baldwin, national director, answer the question,

"How Safe Are Our Liberties?" Rt. Rev. Ed-

ward L. Parsons, Chairman of the local Execu-

tive Committee and national vice-chairman of the

Union, presided. :

Mr. Baldwin sailed from San Francisco for

Japan on the General Gordon on March 28. He

expects to return to this country around the end

of June.

SAN MATEO ARSON TRIALS SET

Trial of six defendants in the San Mateo arson

case in which the nearly-completed home of John

T. Walker, Negro war veteran of Redwood City,

was completely destroyed, is set for trial on April

15. The six are charged with conspiracy to com-

mit arson. :

Defendants John B. Arlotti and Harry R. Haw-

kins are also charged with arson, on which charge

they will be tried on April 8.

Ban on `Estabi

ishment of Religion' Means

No Public Aid or Support for Religion

Last month, we published a substantial part of

the U. 8S. Supreme Court's prevailing opinion,

written by Justice Hugo L. Black, in the New

Jersey bus case, holding valid, by a 5 to 4 vote,

payment of tax funds for transportation of

parochial school pupils. We now publish a sub-

stantial portion of the scholarly dissenting opin-

ion by Justice Wiley Rutledge, concurred in by

Justices Burton, Frankfurter and Jackson. This

opinion sets forth the traditional concept of the

separation of Church and State under our Con-

stitution, which the A. C. L. U. has supported.

We hope to print a relatively short dissenting

opinion by Justice Jackson, concurred in by Jus-

tice Frankfurter, in the May issue of the News."

"Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof...' U. S. Const., Am. Art. I.

"Well aware that Almighty God hath created

the mind trees. ... that to compel a. man:to

furnish contribution of money for the propaga-

tion of opinions which he disbelieves, is sinful

and tyrannical; ...

"We, the General Assembly, do enact, That no

man shall be compelled to frequent or support

any religious worship, place, or ministry what-

soever, nor shall be enforced, restrained, mo-

lested, or burthened in his body or goods, nor

shall otherwise suffer on account of his religious

opinions or belief... ." (A Bill for Establishing

Religious Freedom, enacted by the General As-

sembly of Virginia, January 17, 1786.)

I cannot believe that the great author of those

words, or the men who made them law, could

have joined in this decision. Neither so high nor

so impregnable today as yesterday is the wall

raised between church and state by Virginia's

_ great statute of religious freedom and the First

Amendment, now made applicable to all the states

by the Fourteenth. ...

This case forces us to determine squarely for

the first time what was "an establishment of

religion" in the First Amendment's conception:

UNION URGES VETO OF N.Y. BILL

FOR RELIGIOUS INSTRUCTION ON

RELEASED SCHOOL TIME

Opposition to a bill passed by the New York

State Legislature and now before Governor

Dewey authorizing released time for religious

instruction and extending public service facilities

to private and parochial schools was voiced March

19 by the ACLU through its New York City

Committee and its Committee on Academic

Freedom.

In messages to the Legislature, the Union de-

clared: `Released time during school hours for

religious instruction away from school grounds

is little different from religious instruction in the

public schools and is objectionable as a violation

of separation of church and state. Further, the

use of public funds for the benefit of private and

parochial schools by providing complete welfare

services goes far beyond permissible limits set by

the U. S. Supreme Court's.decision in the New

Jersey parochial school bus case.

"Continued inroads on the fundamental -doc-

trine of the separation of church and state by

legislation of the character here proposed can

only lead to interdenominational strife and pos-

sible State regulation of church affairs which we

would be among the first to abhor. Such ends

can be forestalled by not formulating the be-

ginnings."'

The Union also declared its intention of filing

a brief with the Governor urging that the meas-

ure be vetoed.

and by that measure to decide whether New

Jersey's action violates its command. The facts,

may be stated shortly, to give setting and color

to the constitutional problem.

By statute New Jersey has authorized local

boards of education to provide for the transporta-

tion of children "to and from school other than

a public school" except one operated for profit

wholly or in part, over established public school

routes, or by other means when the child lives

"remote from any school.'"' The school board of

Ewing Township has provided by resolution for

"the transportation of pupils of Ewing to the

Trenton and Pennington High Schools and Catho-

lic Schools by way of public carrier. ..." |

Named parents have paid the cost of public

conveyance of their children from their homes.

in Ewing to three public high schools and four

parochial schools outside the district. Semi-

annually the Board has reimbursed the parents

from public school funds raised by general taxa-

tion. Religion is taught as part of the curriculum

in each of the: four private schools, as appears

affirmatively by the testimony of the superin-

tendent of parochial schools of the Diocese of -

Trenton. :~- :

Not simply an established church, but any law

respecting an establishment of religion is for-

bidden. The Amendment was broadly but not

loosely phrased. It is the compact and exact sum-

mation of its author's views formed during his

long struggle for religious freedom. . . .

The Amendment's purpose was not to strike

merely at the official establishment of a single

sect, creed or religion, outlawing only a formal

relation such as had prevailed in England and

some of the colonies. Necessarily it was to uproot

all such relationships. But the object was broader

than separating church and state in this narrow

sense. It was to create a complete and permanent

separation of the spheres of religious activity and

civil authority by comprehensively forbidding

every form of public aid or support for

religion, ...

(At this point Justice Rutledge gives an extended ac-

count of the struggle for religious liberty in Virginia, in-

cluding the fight over the Assessment Bill, a taxing bill

for the support of religion, which left the taxpayer the

option of giving his tax to education, and the Memorial

and Remonstrance, giving Madison's interpretation of re-

ligious liberty. The Congressional debates are also ex-

amined.)

Does New Jersey's action furnish support for religion

by use of the taxing power? Certainly it does, if the test

remains undiluted as Jefferson and Madison made it, that

money taken by taxation from one is not to be used or

given to support another's religious training or belief,

or indeed one's own. Today as then the furnishing of

"contributions of money for the propagation of opinions

which he disbelieves" is the forbidden exaction; and the

prohibition is absolute for whatever measure brings that

consequence and whatever amount may be sought or

given to that end. :

The funds used here were raised by taxation. . . . Here

parents pay money to send their children to parochial

schools and funds raised by taxation are used `to re-

imburse them. This not only helps the children to get to

school and the parents to send them. It aids them in a

substantial way to get the very thing which they are sent

to the particular school to secure, namely, religious

training and teaching... .

Each (faith) contributes to the "propagation of opin-

ions which he disbelieves" in so far as their religions

differ, as do others who accept no creed without regard

to those differences. Each thus pays taxes also to sup-'

port the teaching of his own religion, an exaction equal-

ly forbidden since it denies "the comfortable liberty"

of giving one's contribution to the particular agency

of instruction he approves,

New Jersey's action therefore exactly fits the type

of exaction and the kind of evil at which Madison

and Jefferson struck. Under the test they framed it

cannot be said that the cost of transportation is no

part of the cost of education or of the religious in-

struction given. That it is a substantial and a necessary

element is shown most plainly by the continuing and

(Continued on Page 4, Col 2)

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

Postal Restrictions To

Occupied Countries Relaxed

German civilians in the U. 8S. zone of occupa-

tion may once again receive American magazines,

books and newspapers if sent as gifts through

the mails. In response to the Union's inquiry

concerning U. S. policy restricting mail service

to former axis countries now under American

occupation, Howard O. Peterson, Assistant Sec-

retary of War, replied on February 25th with the

following information:

Germany: Personal letters and business com-

munications of a non-transactional nature are

permitted. Newspapers, news and fashion maga-

zines, books on any subject, sheet music and

periodicals devoted to special fields of interest

such as art, medicine, literature and similar sub-

jects may be mailed as gifts in packages weighing

up to four pounds six ounces. (Berlin excluded. )

One way airmail service from the U. S. to the

U.S. Zone in Germany is permitted.

Austria: "There is no policy restriction im-

posed by the United States on mail communica-

tion with Austria." The one pound weight limi-

tation on packages of printed material has been

set by the Austrian Government.

Japan: No books, periodicals, or newspapers

may be sent directly to Japanese nationals. such

publications may be introduced into Japan for

sale to Japanese under a licensing procedure set

up by the Supreme Commander. Reply paid

(double) post cards and ordinary letters, includ-

ing business communications of a non-transac-

tional nature up to 4 pounds 6 ounces accepted.

Korea: Books, periodicals and other printed

material are mailable in packages weighing up to

four pounds six ounces. Regular mail service,

comprising letters, post cards, commercial papers,

samples of merchandise and printed matter are

accepted. The restriction in airmail service to

Japan and Korea is due to lack of facilities. The

right of censorship is still retained by all occu-

pation authorities.

In reply to the Union's criticism of the U. S.

ban on Russian periodicals and books, imposed in

retaliation for a previous Russian ban against

American news, Mr. Peterson said that every

effort had been made to reach an agreement for

a free exchange of publications. This agreemnt

having failed, "the War Department has no in-

tention of modifying these arrangements."

S.F. Police Instructed Not To

'Vag' Negro Gis Receiving Benefits

Deputy Police Chief Michael J. Riordan of San

Francisco has issued 2 memorandum to his of-

ficers clarifying California's laws of arrest and

the definition of `"vagrancy." This action came

after 11 San Francisco Negroes were arrested and

convicted as vagrants on March 15. It was claim-

ed the men were either employed, disabled _vet-

erans or receiving unemployment insurance. Here-

after, proof that a man is receiving GI or state

unemployment benefits will be regarded as ade-

quate "means of support," said Chief Riordan.

S.F. History Teacher Apologizes

To Class For Attack On Negroes

Aubrey Smith, history teacher at Balboa High

School, San Francisco, last month apologized to

the members of one of his classes for declaring

to them, 1, that he was happy there were no

Negroes in his class; 2, that he was disgusted

with the white students who supported a Negro

for president of the student council; and, 3, that

where he came from the latter situation would not

be tolerated. After these statements were made

a student whom Mr. Smith did not realize was a

Negro at once protested and then called the mat-

ter to the attention of the San Francisco Urban

League.

_ The ACLU sent a protest to Principal Robert

Chase and to Supt. Curtis Warren and Board

President Adrien Falk. The Union declared it

had no desire to trench upon Mr. Smith's freedom

of opinion and expression, but it pointed out that

"The School District may not discriminate against

any pupil because of his race, color or creed, and,

as an agent of the District, the inhibition also

applies to Mr. Smith."

Supt. Warren expressed the Board's regret that

the incident occurred and assured the Union that

"It is the policy of the school system not to dis-

criminate against any pupil because of race, color

and creed. We are sure that the large majority

of teachers are in full agreement with this policy.

We feel with you that a long range constructive

program for the purpose of better intercultural

relations is a real need in San Francisco and we

are happy to proceed with such a program."

Union Seeks to Legalize Entry

Of Jilted Russian Girl

Last month the ACLU came to the assistance

of Froeda Sinitskaya, a State-less person of

Russian ancestry, born in Harbin, China, who

came to the U. S. as the fiancee of a GI from

Missouri, under a law enacted by Congress. When

she arrived, however, she learned, for the first

time, that her fiance had remarried his divorced

wife. This marriage occurred a couple of weeks

before Miss Sinitskaya left Shanghai, but her

fiancee failed to notify her of it. If she were re-

turned to Shanghai, she would have no job or

place to stay in that teeming and starving com-

munity.

The Union was instrumental in having Con-

gressman Franck R. Havenner of San Francisco

and Senator Sheridan Downey introduce com-

panion measures in Congress which, if enacted.

would permit Miss Sinitskaya to legalize her en-

try into the U. S. The introduction of these bills

has served to stay her deportation. Nevertheless.

the girl remains in detention at the quarters of

the Immigration Service in San Francisco where

she has been held since January 21. The Immi-

gration Service has refused to allow her release

on bond or parole pending final action on the

legislation.

Thus far, Attorney General Tom Clark has

taken no action on the Union's appeal that he

order Miss Sinitskaya's release on parole. Messrs.

Havenner and Downey have been urged to use

their influence with the Attorney General to se-

cure her release and many persons have written

to the three men in behalf of this unfortunate

victim of one of our laws.

"Forever Amber" Cleared By

Massachusetts Court

. Kathleen Winsor's novel of life in Restoration

England which had been charged as being "ob-.

scene, indecent and impure' was restored to

Massachusetts booksellers' shelves on March 10

by Superior Court Judge Francis J. Donahue.

The result of Judge Donahue's decision broke

precedent in many ways. "Forever Amber" was

the first book to be cleared by a higher court in

Massachusetts since the turn of the century. Four

books, including Theodore Dreiser's "American

Tragedy" and Lillian Smith's "Strange Fruit,"

-had previously been condemned as obscene. For

the first time, extensive use was made of the

testimony of psychiatrists to show the book's

effect on the mind and morals of the average

adult reader. Under the new law, the book itself

was brought to trial and not the bookseller.

The Court declared: "The book goes into no de-

tails of sexual relations which might arouse erotic

emotions and lead to immoral behavior. The

book by its very repetitions of Amber's adven-

tures in sex acts like a soporific rather than an

aphrodisiac. While conducive to sleep it is not

conducive to a desire to sleep with a member of

the opposite sex."

The censorship law of 1945 replaced earlier

statutes under which booksellers alone were held

liable for prosecution. Under the new law, a

civil ruling on a book is required prior to any.

criminal prosecution of possible future sales.

Protection for the Loyal

The American Civil Liberties Union sees

cause for "grave concern" in President Tru-

man's order dealing with the loyalty of Gov-

- ernment employees. poe

The order, it thinks, is too broad in scope.

not clear enough as to procedure, and lacking

in adequate safeguards for the civil liberties

of public servants. An A. C. L, U. committee

will propose changes to overcome these

alleged dangers.

Such proposals from any group that recog-

nizes, as the A. C. L. U. does, "the proper

interest of the Government in the loyalty of

its employees," deserves earnest considera-

tion. Disloyal persons must be driven out and

kept out of Government jobs. But it is equal-

ly necessary-and Mr. Truman's order so

states-to protect loyal employees from un-

founded accusations of disloyalty.

We believe the President has tried sincere-

ly to provide this protection, and we think

he will welcome suggestions for making it

more effective without destroying the order's

essential purpose. He certainly doesn't want

to foster a reckless witch hunt, or to penalize

Government workers for legitimate exercise

of their civil rights----EDITORIAL, SAN

FRANCISCO NEWS, MARCH 27, 1947.

Tenney Comm. Smears UC

YMCA for Civil Rights Stand

Sen, Jack B. Tenney has smeared the Univer-

sity YMCA in Berkeley in the current report of

the State Unamerican Activities Committee be-

cause it permits groups to use Stiles Hall as a

meeting place without regard to their convictions

or affiliations. In following that policy, of course,

the quasi-public Y is doing no more than the State

does, and is compelled to do, in permitting citizens

0 meet in school houses under the Civic Center

ct.

In a public statement, Harry L. Kingman, who

has been a staunch defender of civil liberties ever

since we have known him, declares, "At the Ten-

ney, Committee hearing in Oakland last fall I

testified that, although our meeting facilities were

available to any university group not banned by

law, no recent request for them had come from

communist students. The current Tenney release

has given the impression that avowed communist

groups and speakers utilize our meeting facilities

frequently. The fact is that the last such meeting

was back in August, 1944."

ay we urge the Union's supporters to send

protests to Sen. Tenney and their own Assembly-

mep and Senators against this smearing of a

grdup for its adherence to the cause of civil

liberties.

Union Offers $1,000 Reward In

Chicago Race Terrorist Case

A $1,000 reward was recently offered by the

ACLU through its Chicago Division for "infor-

mation leading to the arrest, conviction, and

imprisonment" of the person(s) who fired four

shots into the apartment of John Fort, one of

two Negro tenants in the Airport Homes veterans

housing project in Chicago.

Charles Stewart, executive secretary of the

Chicago Division, in posting the reward pointed

out.that a special police detail had been instructed

to guard the apartments of the two families after

the outbreak of violence in December when the

Negro families moved in. The police were absent

from their posts at the time of the shooting.

The turbulent history of the Airport Homes

housing project began in December when 200

rioters gathered around a moving truck contain-

ing. the household goods of the two Negro vet-

erans who had rented apartments in this un-

restrictive project. Sixty of the apartments in

the development were occupied by squatters

from the surrounding white neighborhood who

were persuaded to go back to their own homes

only after the intervention of city officials.

The present reward offer is made to deter

further attempts to intimidate the Negro families.

Nudist Cases Arise Both in

No. and Sou. California

The Southern California branch of the

A.C. L. U. last month filed a brief as "friend of

the Court" in the Glassey-Broening nudist case,

now pending in the District Court of Appeals.

The appellants were convicted under a local ordi-

nance forbidding nudist camps. The brief argued

that `The `clear and present danger' rules applies

to practices (that are not anti-social or against

public peace and good order) that are incident to

religious and social belief,' and "the rule has

particular application where a minority is the

subject or `victim' of special legislation-in the

instant case, the nudists."

In another case, Harry Hathaway, a magazine

distributor, was arrested and charged with lewdly

offering the January issue of "Sunshine and

Health" for sale and with offering a lewd maga-

zine for sale. The first count was dismissed by

the! court, while a jury composed a nine women

and three men found the defendant "Not Guilty"

on the second count. "Sunshine and Health' is

the; official organ of the American Sunbathing

Association. Hathaway was represented by a

private attorney.

In Northern California, the A. C. L. U. has

received a letter from Mr. John S. Cowgill, Proba-

tion Officer of San Mateo county, in which he

explains the banning of the February issue of

"Sunshine and Health." "The matter was brought

to this department by Chief O'Brien of the City

of San Mateo. Someone called at his department.

presenting the magazine to him. As I understand

it, he contacted the distributor by telephone. The

_ distributor said there was nothing wrong with

the `magazine. The only part that I have had in

this situation is referring the magazine itself to

the State Attorney General for any possible

action he may decide to take against the pub-

lisher."'

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

HOUSE COMMITTEE GETS

ACLU LABOR BILL |

Appearing before the House Labor Committee

March 14 Osmond K. Fraenkel, ACLU counsel, -

gave the Union's views on labor legislation stress-

ing the trade union democracy bill which the

Union sponsors.

The proposed bill lists unfair practices by labor

organizations from which appeals to the Na-

tional Labor Relations Board are provided. Un-

fair practices prohibited by the bill which, in

effect provides a "Bill of Rights" for union mem-

bers are: "to refuse membership because of race,

creed, color, sex, national origin, opinion, or lack

_ of U.S. citizenship; to discipline any member or

local for participation or refusal to participate in

any political activity; to fail to hold elections at

least once every four years; to fail to conduct

elections by secret ballot free from intimidation ;

to fail to distribute financial reports to its

members." oo

Supporting the Union's bill to amend the Na-

tional Labor Relations Act was a memorandum

which said: "The increasing power of trade un-

ions, secured to a large extent by governmental

protection of their democratic rights, makes

timely a demand that they in turn accept respon-

sibility for the democratic conduct of their in-

ternal affairs. Most trade unions conform in all

respects to proper democratic procedure. But

such practices are unfortunately not uniform, and

in many crafts and industries there are glaring

exceptions." ;

ACLU Brief Hits Anti-

Japanese Alien Land Law

Urging the U. S. Supreme Court to review the

California Supreme Court's decisions upholding

the State's Alien Land Law, the ACLU filed a

brief as a friend of the court, March 19, in sup-

port of the fight of two Japanese aliens to-re-

cover their land. Fred Y. Oyama and Kajiro

Oyama are appealing for the recovery of real

estate, confiscated by California under a statute

which forbids the ownership or use of land by

aliens ineligible for citizenship. e

The Union maintains that the Alien Land Law

violates the Fourteenth Amendment to the Con-

stitution because it discriminates against Japan-

ese because of their race. `At present, the only

ethnic group whose members reside in this coun-

try in a substantial number and are ineligible for

naturalization is the Japanese," the brief points

out. :

The prejudiced aims of the state law are noted

by the Union. "This law was enacted as an anti-

Oriental, and primarily as an anti-Japanese,

measure. Its purpose was to `reserve the State

for American labor and American landlords.'

`To keep out people we don't want, particularly

the Japanese,' and to express `the feelings of the

people of the coast towards Orientals.' "'

Meanwhile, an appropriation of $200,000 to: in-

vestigate and prosecute persons of Japanese ,an-

cestry under the Alien Land Law is being sought

in the State Senate. Prior to the war, the law

had not been rigidly enforced.

Signing the brief for the Union were Nanette

Dembitz, Edward J. Ennis, Osmond K. Fraenkel,

Walter Gellhorn and Arthur Garfield Hays of

New York; Reuben Oppenheimer of Maryland;

and Harold Evans of Pennsylvania.

Use of Spanish In Puerto.

Rico Schools Upheld.

In a unanimous decision the San Juan, Puerto

Rico District Court last month overruled Presi-

dent Truman's veto of the Puerto Rican bill sub-

- stituting Spanish for English as the language of

instruction in the island schools. The court held

that the President had acted after the 90 days

fixed by law and that the bill had therefore `be-

come effective. The ACLU supported the court

test with a brief filed by attorney Miguel Guerra-

Mondragon of San Juan. Appeal has been taken

to the Supreme Court of Puerto Rico, and `the

case will eventually go to the U. S. Supreme

Court. The ACLU has promised legal assistance

on appeal. :

The Union has long opposed teaching Spanish-

speaking children in English as a denial of their

right to learn in their native language. Its inter-

vention in the court case, however, was based on

the technical legal point of the time within which

the President acted. The language issue aroused

the island's people who with the exception ofi the

statehood advocates, support teaching in Spanish.

The President's nominee for Commissioner of

Education, also supports it, and his confirmation

by the Senate has been held up through opposi-

tion from the small statehood group.

ACLU Recommendations Concerning Pending

State Legisiation

The Executive Committee of the A. C. L. U. of

Northern California has taken the following

action on bills pending in the State Legislature

which affect civil rights:

Bills Opposed

1. A.B. 190 and A.B. 2470, amending the Civic

Center Act to ban the use of meeting places

by persons or groups holding racial or re-

ligious prejudices;

2. A.B. 65 and S.B. 97, providing for the dis- -

charge of teachers who hold forbidden opin-

ions or belong to subversive groups;

S.B. 1027, forbidding "politically controversial

subjects" to be taught in publie schools, and

excluding the use of "propaganda."

4. 0x00A78.B. 1181, prohibiting the certification of any

school to receive federal funds, if it is "dom-

inated or influenced" by subversive persons

or groups or has subversive persons on its

faculty.

0. 8.B. 1453, appropriating $200,000 for enforce-

ment of the Alien Land Law. A

6. A.B. 1526, to punish "hatred conspiracies."

Co

Oakland Police Continue Interference

With Distribution of Leaflets (c)

Interference with freedom of speech and of the

press in Oakland continued last month as two

test issues remained undecided in the courts, The

latest incident occurred on March 14 when police

interfered with the distribution of mimeographed

leaflets to persons lined up for admission to the 0x00B0

Tower Theatre at 51st St. and Telegraph Avenue.

The leaflets were issued by the Communist Party

and were entitled "WAR IN GREECE"'-A Trag-

edy in Three Acts. Two police officers declared

that the leaflets could not be distributed "without

a city permit and a mailing permit, and that if

they continued to distribute they would be taken

to the nearby police station." The distributors

thereupon left.

In the meantime, a hearing was held in the case

of Herbert F. Steiner, State Organizer of the

Socialist Labor Party, who was arrested on Feb-

ruary 14 and charged with violating an ordinance

regulating the distribution of advertising matter

on private property. The District Attorney agreed

that Steiner was distributing a printed Socialist

Labor Party leaflet, entitled, "Socialism vs. Gov-

ernment Ownership," to pedestrians at the corner

of 12th and Washington Streets. ACLU attorney

Clarence E. Rust of Oakland filed a brief arguing

that the law is unconstitutional as applied. The

District Attorney is scheduled to file an answer-

ing brief on April 1. -

Final briefs in ariother case were scheduled to

be filed on March 28. That case involves three

men who distributed leaflets advocating a more

efficient and militant prosecution of the AFL

clerks' strike against two Oakland department

stores. They were arrested on the complaint of

Union officials while they were distributing their

leaflets in front of Oakland's Municipal Auditori-

um where the Union was holding a meeting. They

were also charged with violating the local ordin-

ance regulating the distribution of advertising

matter on private property.

`MEMBERSHIP GROWS

The Union's local membership continues to

grow. On the first of March, the members in good

standing numbered 1114-tthe first time the active

membership has crossed the eleven hundred mark.

New Telephone Number

For more than twelve years the A. C. L. U.

telephone number was EXbrook 1816. Re-

cently, we were finally compelled to make a

change because we had received repeated

complaints that our number was always

busy. Consequently, we were compelled to

secure another line. Now, if you should call

us and one line is busy, the call is automa-

tically transferred to the second line. But, if

you get a busy signal, you'll know that two

lines are busy. Next August our telephone

number, together with most of those in San

Francisco, will again be changed because the

numeral 2 will be added to the present cen-

tral office name. We'll notify you when the

change goes into effect.

EXbrook 3255

iHecting Civil Rights

Bills Supported

1. A.B. 1375, to repeal sections of the Education -

Code permitting separate schools for children

of American Indian, Chinese, Japanese or

Mongolian parentage; :

2. S.B. 900, to prohibit race discrimination in the

- State militia, while seeking to amend the bill

to prohibit segregated units;

S.B. 80, providing for a commission to investi-

gate racial discrimination, but seeking to

amend the bill to provide a larger appropria-

tion and to grant full subpoena powers.

4. A.B. 1267, requiring licensed insurance com-

panies to sell public liability insurance to all

persons, regardless of race or color;

D0. A.B. 2243, requiring non-profit, tax exempt

hospitals to admit patients at the request of a

licensed physician; and, A.B. 1808, providing

that hospitals established by hospital districts

Shall not discriminate on account of race,

creed or color and thereby deny the free choice

of a physician;

6. A.B. 1105, requiring a phonographic record of

the State Medical Board's oral examinations,

but proposing an amendment to permit the

applicant to inspect the record. `

URGE CLEMENCY STAY FOR

Co

JAPANESE HARDSHIP CASES

_A bill enabling the Attorney-General to exer-

cise clemency powers to stay the deportation of

some 200 Japanese aliens, whose departure would

cause hardship to their American families, was

urged last month on members of the Subcommit-

tee on Immigration and Naturalization of the

House Judiciary Committee as "an act of simple

justice" toward those who have been loyal to

the United States.

The Union's memorandum points out that un-

der present laws the Attorney-General is pro-

hibited from exercising discretion in cases in-

volving persons ineligible to citizenship. `There

are at present about 200 illegal entrants-treaty

merchants whose status has now changed and

students of Japanese ancestry whose deportation -

to Japan has been ordered. Almost all of these

have dependent citizen wives and children, some

of whom have served in the armed forces. All

have been loyal to the United States. Their de-

parture now would cause much hardship and in

some cases actual suffering to their American

families. -

"Under the present law were they of other than

Oriental stock, the Attorney-General would have

`power to suspend deportation. As an act of

simple justice, such discrimination merely because

of race should be eliminated."

INDIAN VOTE DECISION DEFERRED

A decision as to whether three Indians were

eligible to register as voters under the New Mex-

ican State Constitution which denies the ballot

to "Indians untaxed" was deferred recently by

District Judge David Chavez of Gallup.

Judge Chavez asked attorneys to submit briefs

for a later hearing in Santa Fe on findings of

fact. The Indians, who were refused registration

for the last general election, testified they paid

state sales taxes, and tobacco taxes; the payment

of a federal income tax was claimed by one of

the petitioners.

A brief will be submitted by William J. Trus-

well, Albuquerque attorney, retained by the ACLU

for the Indians.

Indictments Returned in

Dora Jones Slavery Case

The federal grand jury in Los Angeles on (c)

March 19 indicted Alfred Wesley Ingalls and his

wife Mira on charges of keeping their Negro

maid, Dora L. Jones, in slavery for forty years.

Testifying before the Grand Jury in support of

the charges were Mrs. Richard Roberts of Berke-

ley, the couple's daughter, and Mrs. Ruth Cas-

tendyk of Chicago, Mrs. Ingall's daughter by a

previous marriage. ~

The A. C. L. U. became acquainted with the

case last October, the day after Mr. and Mrs.

Roberts were unsuccessful in liberating Dora

Jones, at the time the Ingalls family visited them

in Berkeley. Persuasion was unsuccessful in free-

ing Dora Jones, so the children were regretfully

compelled to allow the federal authorities to -

handle the matter.

ace,

Page 4

_ AMERICAN CIVIL LIBERTIES UNION-NEWS

_ American Civil Liberties Union-News

Published monthly at 461 Market St., San Francisco, 5

Calif., by the American Civil Liberties Union

of Northern California.

Phone: EXbrook 3255

ERNEST BESIG ....... Editor

_ Entered as second-class matter, July 31, 1941, at the

Post Office at San Francisco, California,

under the Act of March 3, 1879.

Subscription Rates-One Dollar a Year.

Ten Cents per Copy.

Released Time Plan Upheld

By California District Court

The Second District Court of Appeal on March

10 unanimously upheld the constitutionality of

California's law permitting released school time

for religious instruction as put into effect in Los

Angeles. The law had been attacked as being in

violation of the Federal Constitution prohibiting

any "law respecting an establishment of religion,"

and also as being in violation of the California

Constitution prohibiting the support of any de-

nominational school or any aid to a sectarian pur-

pose. It is expected that the case will be appealed

to the State Supreme Court. _

At the request of an Interfaith Committee "the

Board of Education (of Los Angeles) caused to

be sent to parents of pupils in the Los Angeles

schools literature describing the plan, and cards

for the parents to return to the board. These

cards contained a form for the parents to sign,

consenting that the children take part in the

plan, and designating the faith they were to be

taught. The expense of preparation, printing or

mimeographing, and mailing of the literature and

cards was paid by the school system. Teachers

and superintendents of schools were directed to

151- ae

keep attendance records and to oversee the work-

ing of the plan.

"As the plan operates, children are segregated

according to preferences expressed by their par-

ents regarding religious instruction, transported

from the school grounds to places arranged for

by the Interfaith Committee, and there taught

the doctrine of the church to which they have

been assigned. . . . Children not participating in

the program remain in school and such teaching

as they receive is optional with the teachers."

After citing precedents from California and

other states, the court simply declares, "Descrip-

tion of the released-time plan demonstrates it to

be non-sectarian .. ." The court also declares

that on the basis of the recent New Jersey bus

decision, "there is no appropriation of public

money in support of any sect or denomination and

no teaching of sectarianism in the school system

of Los Angeles County... ."

In a concurring opinion, Judge White cites

various examples of the recognition of religion

by the state. "In the face of all these," he asks,

"shall it be believed or said that the Constitution

of this state operates to make void legislation,

the effect of which is to promote religion? . .

Tt is denominational religion that is placed outside

of public aid or support."

WHAT IS THE CIVIL RIGHTS COUNCIL?

Recently, we were asked for information con-

cerning the Civil Rights Congress, which has

headquarters in New York City. Here is the

answer we gave. This agency was organized in

1946 to succeed the National Federation for Con-

stitutional Liberties and the International Labor

Defense, with afiliated local organizations. The

organization does not defend the civil rights of

all, and is particularly interested in Communist

cases. It has not established itself in Northern

California but is active in the Los Angeles area.

It has absolutely no connection with the ACLU.

sir i St eae ee ai eS REA EES

MEMBERSHIP APPLICATION

American Civil Liberties Union of No. Calif..

461 Market Street,

San Francisco 5, Calif.

4. Please enroll me as a member at dues of

Qateee les. for the current year. (Types of mem-

bership: Associate Member, $3; Annual Mem-

ber, $5; Business and Professional Member,

$10; Family Membership, $25; Contributing

Member, $50; Patron, $100 and over. Mem-

bership includes subscription to the "American

Civil Liberties Union-News" at 1 a year.)

Zr pledge $e et per month........ On per yr.

3. Please enter my subscription to the NEWS, $1

per yearn) =... bE neers Co kere ee eee og See tee

Enclosed please find $................----2 Please bill

Streets 225.2... See ee ee s

Gly LONG

Bee teow ee ee hese cece ea: Occupation. 2:3...

Ban on "Estab

lishment of Religion' Means

No Public Aid or Support for Religion

(Continued from Page 1, Col 3)

increasing demand for the state to assume it. .. .

And the very purpese of the state's contribution is

to defray the cost of conveying the pupil to the place

where he will receive not simply secular, but also and

primarily religious, teaching and guidance... .

An appropriation from the public treasury to pay

the cost of transportation to Sunday school, to week-

day special classes at the church or parish house, or

to the meetings of various young people's religious

societies, such as the Y.M.C.A., the Y.W.C.A., the

Y.M.H.A., the Epworth League, could not withstand

the constitutional attack. This would be true, whether

or not secular activities were mixed with the religious.

If such an appropriation could not stand, then it is

hard to see how one becomes valid for the same thing

upon the more extended scale of daily instruction. Surely

constitutionality does not turn on where or how often

the mixed teaching occurs.

Finally, transportation, where it is needed, is as es-

sential to education as any other element. Its cost

is as much a part of the total expense, except at

times in amount, as the cost of textbooks, of school

lunches, of athletic equipment, of writing and other

materials; indeed of all other items composing the

total burden. Now as always the core of the educa-

tional process is the teacher-pupil relationship. With-

out this the richest equipment and facilities would

go for naught. But the proverbial Mark Hopkins

conception no longer suffices for the country's

quirements. Without buildings, without equipment, with-

out library, textbooks and other materials, and with-

out transportation to bring teacher and pupil together

in such an effective teaching environment, there can

be not even the skeleton of what our times require.

Hardly can it be maintained that transportation is

the least essential of these items, or that it does not

in fact aid, encourage, sustain and support, just as

they do, the very process which is its purpose to ac-

complish. No less essential is it, or the payment of its

cost, than the very teaching in the classroom or pay--

ment of the teacher's sustenance. Many types of

equipment, now considered essential, better could be

done without.

For me, therefore, the feat is impossible to select

so indispensable an item from the composite of total

costs, and characterize it as not aiding, contributing

to, promoting or sustaining the propagation of be-

liefs which it is the very end of all to bring about.

Unless this can be maintained, and the Court does not

maintain it, the aid thus given is outlawed. Payment

of transportation is no more nor is it any the less

essential to education, than payment for tuitions, for

- teachers' salaries, for building, equipment and necessary

materials . . . Now, as in Madison's time, not the amount

but the principle of assessment is wrong.

- But we are told that the New Jersey statute is valid

in its present application. because the appropriation is

for a public, not a private purpose, namely, the pro-.

motion of education, and the majority accept this idea

in the conclusion that all we have here is "public

welfare legislation." If that is true and the Amend-

ment's force can be thus destroyed what has been said

becomes all the more pertinent. For then there could

be no possible objection to more extensive support of

religious education by New Jersey.

If the fact alone be determinative that religious

schools are engaged in education, thus promoting the

general and individual welfare, together with the legis-

lature's decision that the payment of public moneys

for their aid makes their work a public function, then

| can see no possible basis, except one of dubious legis-

lative policy, for the state`s refusal to make full ap-

propriation for support of private, religious schools, just

as is done for public instruction. There could not be,

on that basis, valid constitutional objection.

Of course paying the cost of transportation promotes

the general cause of education and the welfare of the

individual. So does paying all other items of educational

expense. And obviously, as the majority say, it is much

too late to urge that legislation designed to facilitate

the opportunities of children to secure a secular educa-

tion serves no public purpose. Our nation-wide system

of public education rests on the contrary view, as do

all grants in aid of education, public or private, which

is not religious in character.

These things are beside the real question. They have

no possible materiality except to obscure the all-pervad-

ing, inescapable issue. Stripped of its religious phase,

the case presents no substantial federal question. The

public function argument, by casting the issue in

terms of promoting the general cause of education and

the welfare of the individual, ignores the religious factor

and its essential connection with the transportation,

thereby leaving out the only vital element in the case.

So of. course do the "public welfare" and "social legis-

lation" ideas, for they come to the same thing.

We have here then one substantial issue, not two.

To say that New Jersey's appropriation and her use

of the power of taxation for raising the funds appro-

priated are not for public purposes but are for private

ends, is to say they are for the support of religious

teaching. Conversely, to say that they are for public

purposes is to say that they are not for religious ones.

This is precisely for the reason that education which

includes religious training and teaching, and its support,

have been made rmnatters of private right and function,

not public, by the very terms of the First Amendment.

That is the effect not only in its guaranty of religion's

free exercise, but also in the prohibition of establish-

ments. It was on this basis of the private character of

the function of religious education that this Court held

parents entitled to send their children to private, reli-

gious schools. Now it declares in effect that the appro-

priation of public funds to defray part of the cost of

attending those schools is for a public purpose. If so,

1 do not understand why the state cannot go farther or

why this case approaches the verge of its power.

In truth this view contradicts the whole purpose and

effect of the First Amendment as heretofore conceived.

The "public function'-`public welfare"'-"social legis-

lation" argument seeks, in Madison's words, to "employ

re-"

Religion (that is, here religious education) as an engine

of Civil policy." It is of one piece with the Assessment

Bill's preamble, although with the vital difference that

it wholly ignores what that preamble explicity states.

Our constitutional policy is exacty the opposite. It

does not deny the value or the necessity for religious

training, teaching or observance. Rather it secures their

free exercise. But to that end it does deny that the state

can: undertake or sustain them in any form or degree.

For this reason the sphere of religious activity, as

distinguished from the secular intellectual liberties, has

been given the twofold protection and, as the state can-

not; forbid, neither can it perform or aid in performing

the religious function. The dual prohibition makes that

function altogether private. It cannot be made a public

one by legislative act. This was the very heart of

Done Remonstrance, as it is of the Amendment

itseiT.

It is not because religious teaching does not promote

the public or the individual's welfare, but because

neither is furthered when the state promotes religious

education, that the Constitution forbids it to do so.

Both legislatures and courts are bound by that distinc-

tion. In failure to observe it lies the falacy of the "pub-

lic "function"--"social legislation' argument, a_ falacy

facilitated by easy transference of the argument's bas-

ing! from due process unrelated to any religious aspect

to the First Amendment.

_By no declaration that a gift of public money to reli-

gious uses will promote the general or individual wel-

fare, or the cause of education generally, can legisla-

tive bodies overcome the Amendment's bar. Nor may

the; courts sustain their attempts to do so by finding

such consequences for appropriations which in fact give

aid to or promote religious uses. Legislatures are free

to make and courts to sustain, appropriations only when

it can be found that in fact they do not aid, promote,

encourage or sustain religious teaching or observances,

be the amount large or small. No such finding has been

or could be made in this case. The Amendment has re-

moved this form of promoting the public welfare from 0x00B0

legislative and judicial competence to make a_ public

function. It is exclusively a private affair.

The reasons underlying the Amendment's policy have

not, vanished with time or diminished in force. Now as

when it was adopted the price of religious freedom is

double. It is that the church and religion shall live

both within and upon that freedom. There cannot be

freedom of religion, safeguarded by the state, and inter-

vention by the church or its agencies in the state's

domain or dependency on largesse. .. .

The (majority) opinion concedes that the children are

aided by being helped to get to the religious schooling.

By converse necessary implication as well as by the

absence of express denial, it must be taken to concede

also that the school is helped to reach the child with

its religious teaching. ... .

Notwithstanding the recognition that this two-way aid

is given and the absence of any denial that religious

teaching is thus furthered, the Court concludes that the

aid so given is not "support" of religion. It is rather

only support of education as such, without reference

to its religious content, and thus becomes public welfare

legislation. To this elision,of the religious element from

the case is added gloss in two respects, one that the aid

extended partakes of the nature of a safety measure,

the, other that. failure to provide it would make the

state unneutral in religious matters, discriminating

against or hampering such children concerning public

benefits all others receive.

As will be noted, the one gloss is contradicted by

the-facts of the record and the other is of whole cloth

with the `public function' argument's excision of the

religious factor. But most important is that this ap-

proach, if valid, supplies a ready method for nullifying

the. Amendment's guaranty, not only for this case and

others involving small grants in aid for religious educa-

tion, but equally "sr larger ones. The only thing needed

will be for the Court again to transplant the "public

welfare--public function" view from its proper nonreli-

gious due process bearing to First Amendment applica-

tion, holding that religious education is not "supported"

though it may be aided by the appropriation, and that

the' cause of education generally is furthered by helping

the "pupil to secure that type of training.

This is not therefore just a little case over bus fares.

In paraphrase of Madison, distant as it may be in. its

present form from a complete establishment of religion,

it differs only in degree; and is the first step in that

direction. Today as in his time "the same authority

which can force a citizen to contribute three pence

only ... for the support of any one religious establish-

ment, may force him" to pay more: or "to conform

to any other establishment in all cases whatsoever."

.And now, as then, "either .... we must say, that the

will of the Legislature is the only measure of their

authority; and that in the plenitude of this authority,

they may sweep away all our fundamental rights; or,

that they are bound to leave this particular right un-

touched and sacred."

The realm of religious: training and belief remains,

as the Amendment made it, the kingdom of the indivi-

dual man and his God. It should be kept inviolately

private, not "entangled in precedents" or con-

founded with what legislatures legitimately may take

over into the public domain. .. .

Two great drives are constantly in motion to abridge,

in the name of education, the complete division of reli-

gion and civil authority which our forefathers made. One

is to introduce religious education and observances into

the public schools. The other, to obtain public funds for

the aid and support of various private religious schools.

In my opinion, both avenues were closed by the Consti-

tution. Neither should be opened by this Court. The

matter is not one of quantity, to be measured by the

amount of money expended. Now as in Madison's day

it is one of principle, to keep separate the separate

spheres as the First Amendment drew them; to prevent

the first experiment upon our liberties; and to keep

the question from becoming entangled in corrosive pre-

cedents. We should not be less strict to keep strong

and "untarnished the one side of the shield of religious

freedom than we have been of the other.