Before SMITH and MARSHALL, Circuit Judges, and METZNER, District Judge*fn* .
Appellants, faculty members of the State University of New York at Buffalo, commenced a class action in the United States District Court for the Western District of New York under 28 U.S.C.A. §§ 2281, 2284 for the convening of a three-judge district court to pass on the constitutionality of Sections 3021 and 3022 of the New York Education Law, McKinney's Consol.Laws, c. 16, Section 105 of the New York Civil Service Law, McKinney's Consol.Laws, c. 7, and Section 244 of Article XVIII of the Rules of the Board of Regents of the State of New York as well as the required certificates and oaths.
Appellants refused to sign loyalty certificates*fn1 prepared by the Board of Regents pursuant to Section 3022*fn2 The complaint is an attack upon the constitutionality of the entire system set up pursuant to the statute requiring the promulgation of the rules and the reference to the statutes in the certificates in question. The claim is that the laws are unconstitutionally vague in violation of the Fourteenth Amendment and that they inhibit vital thought and speech in violation of the First Amendment as made applicable to the states by the Fourteenth Amendment.
Judge Henderson, finding no substantial federal question presented, refused to convene a three-judge court and dismissed the complaint (233 F. Supp. 752). Judge Henderson was correct in his general statement of the law: "Unless no substantial federal question is presented, a three judge Court must be convened." Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962). It is likewise true that "the lack of substantiality in a federal question" may appear from previous decisions of the Supreme Court, California Water Serv. Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 867, 82 L. Ed. 1323 (1938). However, we are not convinced that the issues raised here were determined in Adler v. Board of Education, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952). We, therefore, reverse and remand with instructions to convene a three-judge court.
While Adler held Section 3022 not to be unconstitutional as applied to teachers in the public schools of New York, it specifically refused to pass upon the constitutionality of section 3021 (342 U.S. at 489, 496, 72 S. Ct. 380, 96 L. Ed. 517) and certainly did not consider the application of section 3022 to university faculty members. The certificate here in question and several statutory amendments, such as Section 105(3) of the Civil Service Law, are all subsequent to Adler. Moreover, there is a significant similarity between the state laws in question here and those held unconstitutional in Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). Cf. also Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (April 26, 1965).
Appellees rely heavily upon the statement in Adler that, "It is equally clear that they [public school teachers] have no right to work for the State in the school system on their own terms," 342 U.S. 485, 492, 72 S. Ct. 380, 384, 96 L. Ed. 517. However, the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected. In less than a year after Adler the Supreme Court clearly limited its language in Adler:
"We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory." Wieman v. Updegraff, 344 U.S. 183, 192, 73 S. Ct. 215, 219, 97 L. Ed. 216 (1952).
See also, Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961); Cramp v. Board of Public Instruction, 368 U.S. 278, 288, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S. Ct. 637, 100 L. Ed. 692 (1956); Willcox, Invasions of the First Amendment Through Conditioned Public Spending, 41 Cornell L.Q. 12 (1955).
In Wieman the Court "noted probable jurisdiction because of the public importance of this type of legislation and the recurring serious constitutional questions which it presents." 344 U.S. at 186, 73 S. Ct. at 216, and as late as 1964 the Court repeated the identical statement in Baggett, supra, 377 U.S. at 366, 84 S. Ct. at 1319. This case no less should not be dismissed as lacking in substance. We, therefore, reverse the judgment below and ...