Teachers and the Fifth Amendment

Abstract

The steady parade of witnesses who have invoked the Fifth Amendment privilege before congressional committees has focused public interest on this provision of the Bill of Rights. Unfortunately, the growth in public interest has not been accompanied by a corresponding increase in public understanding. Consideration of the subject has generally proceeded in the form of a debate between extremes. On the one hand, it is said that since the privilege is legal its claim is entirely neutral and implies nothing of significance about the witness. On the other, it is urged that the only reason a witness would refuse to answer is that he is "guilty" and that the claim of the privilege should itself automatically disqualify the witness from continuing in any position of public trust or confidence. With the recent intensification of congressional investigations into education, teachers who claimed the privilege have become embroiled in this problem. One thing seems clear: because of present public attitudes, the teacher who invokes the Fifth Amendment runs the serious risk that he will be discharged from his position and that his reputation will be ruined. What is much less apparent is whether such adverse consequences should flow from the exercise of the privilege. That is the legal and moral problem which is explored here. The privilege not to be a witness against oneself was an outgrowth of English and Colonial experience with the abuses of an inquisitorial system of justice. 1 The modem significance of the privilege is thus described by Dean Wigmore:

Chapter VI: Reshaping Educational Policy

“…This code stated that college administrators should refrain from (a) prescribing or demanding the withdrawal of a textbook in accordance with their own views; (b) retaliating against a teacher who uses a textbook in disagreement with their views; and (c) transmitting to a teacher, with implications of endorsement, any suggestion, criticism, or demand for withdrawal of a textbook which they may have received from a third person, either outside or inside the institution. Byse (14) examined reasons why the teacher who invoked the Fifth Amendment ran the serious risk that he would be discharged from his position and his reputation ruined. Byse asserted that the appropriate agency for ascertaining the facts concerning a teacher's qualifications or disqualifications is not a Congressional committee, but the academic institution of which he is a part.…”