Number 2 July 8, 1971

Number 2 July 8, 1971 Honorable Neil V. Sullivan Commissioner of Education 182 Tremont Street Boston, Massachusetts 02111 Dear Commissioner Sullivan: You have requested my opinion regarding the authority of the De- partment of Education (the Department) to require that an applicant under G. L. c. 71, § 38G, for a teaching certificate answer certain ques- tions and provide certain information. The questions on the certification application used by the Department are: "1. Have you ever had a teaching certificate revoked or sus- pended in any Commonwealth or State at any time? . . . "2. Have you ever been dismissed from a teaching or school administration position? . . . "3. Have you ever been arrested or convicted of any crime (ex- cluding minor traffic violations)? . . . N.B. If your answer to 1, 2 or 3 is 'Yes,' please give full particulars. ..." Question 4 asks for references from persons who qualify to give evi- dence of the applicant's moral character. You state that a certain applicant has challenged the authority of the Department to ask these questions on the grounds that questions 1, 2 and 3 "require an applicant to testify against himself if he has to answer in the affirmative," and that question 4 has "no bearing" on the applicant's qualifications to teach. You ask whether the Department may legally continue to ask the questions. For the reasons hereinafter stated, I answer your questions in the af- firmative. The privilege against self-incrimination is contained in article 12 of the Declaration of Rights of the Massachusetts Constitution and in the Fifth Amendment to the United States Constitution. The Fifth Amendment provides: "No person . . . shall be compelled in any criminal case to be a witness against himself ..." The Supreme Court of the United States has recently held that federal standards under the Fifth Amendment are binding on the states by virtue of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 (1964). The answer to your question, therefore, re- quires an examination of federal law. Under G. L. c. 71, § 38G, the Department is directed to grant certifi- cates to teachers who furnish proof of their qualifications and "sound moral character." The granting of a certificate is a prerequisite to em- ployment as a public school teacher. Consequently, the granting of a P.D. 12 39 teaching certificate is relevant to two lines of federal cases, concerning, respectively, constitutional rights of applicants for, or possessors of, a professional certification (usually attorneys), and the constitutional rights of public employees. In two recent cases, Gardner v. Broderick, 392 U.S. 273 (1968), and Uniformed Sanitation Men's Assn. v. Commissioner of Sanitation, 392 U.S. 280 (1968), the United States Supreme Court held that a public employee may not be discharged for his refusal to answer questions which might tend to incriminate him, unless those questions specifically, directly and narrowly relate to the performance of his official duties. In Spevack v. Klein, 385 U.S. 511 (1967), the Supreme Court held that an attorney may not be disbarred for asserting his privilege against self- incrimination. The logical extention of these decisions is that a state may not refuse public employment or professional certification to an appli- cant because of his assertion of the privilege. See Spevack v. Klein, supra, at 521 (Harlan, J., dissenting). See also Baird v. State Bar of Ariz., 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971) (three cases concerning authority of states to require applicants for ad- mission to the bar to furnish information arguably protected by First Amendment rights to free speech, belief and association). However, the privilege against self-incrimination may only be invoked with regard to questions which pose a real danger of "incrimination," that is, questions the answers to which will show or tend to show that the person answering is guilty of a crime for which he is still open to punishment. Ullmann v. United States, 350 U.S. 422, 430-431, 438-439 (1956). None of the questions on the certification poses such a danger to an applicant. It is not a crime or evidence of a crime to have been dis- missed from a teaching position or to have had a teaching certificate re- voked or suspended. The fact of a prior conviction for crime does not constitute evidence upon which a new prosecution for crime could be based. (In fact, it is, except for very limited instances, inadmissible as evidence in a trial for a subsequent offense.) The recent case of In re Stolar, 401 U.S. 2, 3 (1971), concerned the propriety of the requirement that an applicant for the bar examination in Ohio answer certain questions concerning organizations to which he be- longs or has belonged. The decision concerns primarily First Amend- ment freedoms not here relevant. However, the Supreme Court stated that Ohio had "a legitimate interest in determining whether an applicant has 'the qualities of character and the professional competence requisite to the practice of law,' " and that the state's interest was served by a questionnaire which inquired, among other things, as to the applicant's former employers and his criminal record, and required character refer- ences. On the same day, the Court held in Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159-160 (1971), that there was no constitutional infirmity in New York's requirement that an 40 P.D. 12 applicant for admission to the bar possess "the character and general fitness requisite for an attorney," and that an applicant submit affidavits of persons capable of testifying to his moral character. The state's in- terest in the sound moral character of its teachers is as important as its interest in the character of its attorneys. See Adler v. Board of Educ, 342 U.S. 485, 493 (1952); Beilan v. Board of Educ, 357 U.S. 399, 406 (1958); Shelton v. Tucker, 364 U.S. 479, 485 (1960). Consequently, the Department may constitutionally require an applicant for certification to supply the information requested in questions 1 through 4 on the applica- tion. Very truly yours, ROBERT H. QUINN Attorney General