The authority and jurisdiction of the New York Board of Education over its public school teachers has so far been upheld by the courts. And the Board, in demanding that certain teachers testify concerning their former associates in the Community Party, has explicitly reject all claims of a right of conscience and private judgment.

"Those who claim on any ground the right to refuse should make good the sincerity of their claim by resigning; and if they fail to do so, they should be removed," the Board has said. The Superintendent of Schools has been granted a considerable amount of discretion in deciding whether or not to require teachers to name their associates; but once he does decide to request information about others form a teacher, that teacher faces the starkest of alternatives--either he must make the decision to inform or he follows the dictates of conscience at the risk of almost certain dismissal from his job.

Refusal to inform solely on grounds of conscience and moral duty has been defended most eloquently by Barth. "A witness who feels certain that the persons with whom he was associated in the party were as idealistic and misguided as himself, and were as innocent of espionage or sabotage or any criminal activity, can in good faith refuse to expose them to odium and humiliation. He writes, "if these persons have left the party and established respectable positions for themselves which would be destroyed by his disclosures, he can understandably be unwilling to offer them and their families up as sacrificial victims."

"This kind of defiance... may be altogether unwarranted in law; it may also reflect a mistaken estimate of a particular persons it is intended to protect. Nevertheless, it is an open and candid assumption of individual moral responsibility of a sort that is expected of men and women in a society where the individual conscience is recognized as the supreme authority. It is a course more likely to produce public respect and self-respect than any pleading of a constitutional immunity. And if it does not save the pleader from prison, it will save him at least from an enduring sense of shame."

Telford Taylor, another recent writer on the problems of investigations, share many of Barth's criticisms of investigative practices. But he takes a much more restricted view of all individual's moral right to refuse testimony about others.

"Generally speaking", he writes, "a witness before a Congressional committee has the same duty to answer questions about other persons as about himself...Congress (or a state legislative body) is entitled to whatever information it reasonably needs to discharge its functions, and that may well include--whether the subject of inquiry be stock exchanges or subversion--testimony from a witness which is derogatory of others, or even which implicates them criminally. And neither before a committee nor in court do considerations of personal friendship or of reluctance to injure other individuals, justify the witness in defying the power of inquiry for the public good."

Taylor lays considerable emphasis on the question of the scope of committee power and argues that "Personal compunctions cannot be permitted to obstruct valid official inquiries, but they are entitled to weight in the scales when legal authority is lacking." Even then, Taylor finds an apparent obligation on the part of witnesses to deliver information about others to authorized government officials, especially where considerations of national security may be involved.

For example, he writes "...I would find it difficult to justify Professor Furry's refusal to disclose, to the authorized government authorities, the identity fo his five fellow members in the Party while he was working for the Army Signal Corps... this affair lies so close to the security of the state that I believe a citizen with knowledge off its details should put that information in the Government's hands."

Taylor does express serious doubts as to whether the McCarthy committee met the test of proper authority when Furry testified before it; he finds a possible moral justification for Furry's action in the procedural elements of the case, if not in the generalized claim of individual conscience that Barth is willing to allow.

Perhaps in the final analysis, however, the question of an individual's refusal to inform on grounds of conscience is a theological one. To be sure, no moral theology offers explicit maxims to guide the decisions of a witness, but all lay down borad base lines.

A Higher Law

In a discussion of Catholic teachings on the subject of conscience and the individual, Monsignor Francis J. Lally. editor of the Pilot, official newspaper of the Boston archdiocese, emphasized the pre-eminence of moral law over statutory law. "There is a higher law than the law of the land. We must put moral law above the law of the land; conscience must always receive the first choice."

In making the moral decision whether or not to testify, a witness must balance the demands of his conscience against his view of what constitutes the common good of the community, for "we have social as well as personal responsibilities." Answers to the dilemma may vary with individuals depending upon their mental makeups, Msgr. Lally continued, but the sincerity of the decision is all important in determining its moral quality.

A public school teacher occupies a leading position in the community, and should be held to a high degree of moral obligation. Yet the paramount consideration at this time, in particular, should probably be the necessity to preserve individual rights. "Because of the mood of our time and the totalitarian menace, we should emphasize opposition to that mood--the rights of the individual."