William J. Brennan, Jr.

“ I can scarcely believe thats such concern would be displayed if the question were whether there was evidence to show that Lerner was unreliable about getting the subway doors opened promptly at each station, or that Beilan was incompetent as an algebra teacher. It is obvious that more is at stake here than the loss of positions of public employment for unreliability or incompetence. ”

“ Common sense tells us that if a subway conductor is a security risk at all while at work he is such because he may engage in sabotage. Indeed, the record makes clear that it was just this danger that motivated the New York authorities in extending the Security Risk Law to the Transit System. ”

“ New York and Pennsylvania have publicly announced that the subway conductor and teacher are disloyal Americans. This consequence of the States' actions is devastating beside the loss of employment. In each case a man's honor and reputation are indelibly stained. 'There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. ”

“ We are concerned with far more than, in the Court's phrase, 'the validity of appellant's dismissal from his position as a subway conductor in the New York City Transit System.' The issue is, rather, the validity of his dismissal as a security risk. ”

“ But once the propriety of the question was established, the New York Court of Appeals approved treating the nature of the question as though it were irrelevant to the determination of the ultimate fact of disloyalty. And this Court too says that the finding that Lerner is a security risk could be based on a refusal to 'give any other information about himself which might be relevant to his employment.' 78 S.Ct. 1316. But can we suppose that a subway conductor would be branded a security risk if he refused to answer a question about his health? ”

“ Cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. In this plainly arbitrary manner, Lerner is gratuitously defamed, his honor and reputation indelibly stained. And the wound is far deeper than the occasion demands, for certainly New York cannot lack procedures under which he could have been discharged without blemishing his name.
Here also, the Court has not, in my opinion, stated or decided the true issue of due process tendered by this case. ”