## Facts

- The Board of Higher Education of the City of New York appointed Bertrand Russell, a British philosopher, as chair (professor) of philosophy at City College of New York, with duties that included teaching logic and related subjects.
- The appointment drew public opposition tied to Russell’s published views about religion, sex, and marriage.
- Jean Kay, a New York City resident, taxpayer, and parent of a high-school-aged child, brought a court proceeding seeking to set aside the Board’s action and prevent Russell from serving in the position.
- Kay alleged Russell was not of “good moral character,” relying on statements in his popular writings that approved or defended sexual conduct then widely viewed as immoral and, in some instances, criminal (including sex outside marriage and homosexuality).
- Kay also challenged the legality of the appointment on governmental-administration grounds, asserting Russell was ineligible under applicable public-education rules (including citizenship-related limits) and that the Board did not follow competitive civil-service methods for selection.
- The Board defended its choice as a matter of academic judgment and argued the institution should be free to select faculty without judicial interference.
- Although City College then enrolled only men, Kay asserted a parental interest in preventing immoral instruction in the municipal college system and proceeded as a taxpayer as well.

## Issues

1. Whether Kay, as a taxpayer and parent, had sufficient interest to challenge the Board’s appointment decision in court.
2. Whether statutory or regulatory eligibility rules for public educators barred the Board from appointing a non-citizen to a teaching position at a municipal college.
3. Whether the Board’s appointment was unlawful for failure to use a competitive examination or otherwise comply with civil-service “merit and fitness” requirements applicable to public employment.
4. Whether Russell’s writings could support a judicial finding that he lacked the moral character required for employment as a publicly funded teacher.
5. Whether the Board’s claim of academic freedom prevented the court from setting aside the appointment.

## Decision

- The Supreme Court of New York, New York County set aside the Board’s appointment of Bertrand Russell, effectively barring him from taking the City College position.
- The court entertained Kay’s challenge and did not dismiss it for lack of standing, reaching the merits of her claims.
- The court concluded the appointment was unlawful on statutory/administrative grounds, including Russell’s ineligibility as a non-citizen under the court’s reading of the governing law for public-school teachers as applied to the municipal college system.
- The court also treated the Board’s failure to use competitive examination procedures (or to justify dispensing with them) as an additional defect in the appointment.
- Separately, the court relied on Russell’s writings on sex and marriage to find him morally unfit for a public teaching post, characterizing his views as inconsistent with the moral standards the court believed were required of teachers and as encouraging unlawful conduct.
- The court rejected the argument that academic freedom allowed the Board to disregard statutory limits and qualifications for public teaching appointments.

## Legal Principles

- A public education board has only the authority granted by law; an appointment that conflicts with statutory eligibility limits may be declared void.
- Where civil-service rules require selection based on merit and fitness through competitive methods “as far as practicable,” a public appointment may be set aside if made outside those requirements without adequate legal basis.
- Courts may treat “good moral character” as a condition of public teaching employment and may consider an applicant’s published statements when deciding whether that condition is met, at least under the legal standards applied at the time.
- Institutional claims of academic freedom do not, by themselves, immunize a public appointment from judicial review for compliance with statutory qualifications and civil-service constraints.
- Taxpayer and parental status may be accepted as a sufficient basis to bring a challenge to allegedly unlawful public action in the administration of a publicly funded education system.

## Conclusion

In *Kay v. Board of Higher Education of the City of New York*, the court invalidated Bertrand Russell’s appointment to a City College professorship after a taxpayer-parent challenged the Board’s action. The court held the appointment could not stand because it conflicted with statutory and civil-service requirements governing public educational employment (including a citizenship-related bar as the court read it and the absence of competitive selection procedures) and because Russell’s published writings led the court to find he lacked the moral character required of public teachers, notwithstanding the Board’s appeal to academic freedom.


Kay v. Board of Higher Education of the City of New York, 18 N.Y.S.2d 821 (1940)