Number 2. August 1, 1968

Number 2. August 1, 1968 HONORABLE OWEN J. KIERNAN Commissioner of Education 182 Tremont Street Boston, Massachusetts 021 1 Dear Dr. Kiernan: Acting in your behalf, Deputy Commissioner Thomas J. Curtin has asked for my opinion concerning the "constitutionality" of Question No. 3 in the Placement Registration Form of your Department's Bureau of Teacher Certification and Placement ("the Bureau"), reading as follows: "Are you now or have you ever been a member of the Communist Party or any other organization, the purpose of which is or was the over throw [sic] of the government of the United States by force [?] " I understand that the placement services of your Department are distinct from its certification functions. The latter are undertaken pursuant to G.L. c. 71, §38G, which conditions the appointment of a teacher in a public school on the issuance of a certificate of qualification by the Board of Education. Placement services, on the other hand, are provided for under G.L. c. 69, §6, which reads as follows: "The department shall receive applications for the position of teacher from graduates of good moral character of any high school or teachers college in this commonwealth, or of any other school deemed by the department to be of equal grade, or of any reputable college. Such an application shall contain the applicant's name and address, and, briefly, his experience and qualifications. The department, without charge, shall communicate with the various school committees and with the applicants themselves with a view to securing such positions." I understand that when a superintendent of schools requests the Board to furnish him with the names of teachers for possible employment, the Bureau customarily gives the superintendent copies of the Placement Forms of the teachers who are referred. The teachers and the superintendent then deal P.D. 12 31 directly with each other. There is no requirement, however, that the Bureau's placement service must be used either by a superintendent or by a teacher who desires employment in a public school. Thus, the employment of a teacher does not necessarily depend on his completion of the Placement Form. Yet if the teacher seeks to avail himself of the placement services of the Bureau, the Form must be filled out. Nothing in G.L. c. 69, §6, which confines the application to the "applicant's name and address, and, briefly, his experience and qualifications," authorizes an inquiry into a teacher's political opinions or affiliations. This restriction could itself render Question No. 3 invalid as an impermissibly broad inquiry into a teacher's qualifications. (See the cases cited below.) Invalidity could also result from the operation of G.L. c. 71, § 39, which reads as follows: "No public school committee or official shall inquire concerning, or require or solicit from an applicant for a position in the public schools any information as to, his religious belief, creed or practice, or his political opinions or affiliations; and no appointment to such a position shall be in any manner affected thereby. Violation of this section shall be punished by a fine of not more than fifty dollars." Since the foregoing section would prohibit a public school official from inquiring into the political opinions or affiliations of an applicant, the official should not be allowed by means of the Placement Form to obtain indirectly from your Bureau the kind of information that he could not obtain directly. Any other conclusion would raise serious doubts as to the constitutionality of Question No. 3. See Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589; United States v. Robel, 389 U.S. 258; Schneider v. Smith, 390 U.S. 17. And it is fundamental that statutes should be construed to avoid constitutional doubts. Opinion of the Justices, 341 Mass. 760, 785; Rohrer, petitioner, Mass. Adv. Sh. (1967) 1445, 1448. In short, then, without reaching questions of constitutionality, I conclude that Question No. 3 is invalid under the Massachusetts statutes set forth above. Very truly yours, ELLIOT L. RICHARDSON A ttornev General