Marjorie Heins heads the Free Expression Policy Project (www.fepproject.org) and is the author of Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth. In the 1990s she directed the ACLU’s Arts Censorship Project; more recently, she has taught at NYU, UC-San Diego, and the American University of Paris. Her forthcoming book, “Priests of Our Democracy”: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, will be published by NYU Press in early 2013.
By Marjorie Heins
Harry Keyishian was a junior at Queens College in 1952 when a popular professor was summarily fired for refusing to answer a Senate investigating committee’s questions about her political beliefs and associations. It was the height of the anti-communist witch hunt in America. Fifteen years later, Keyishian had—as he put it—his “revenge on the fifties”: he was the successful lead plaintiff in Keyishian v. Board of Regents, the Supreme Court decision that finally put an end to loyalty purges in education. Today is the 45th anniversary of the Keyishian decision.
Keyishian and his four co-plaintiffs (SUNY-Buffalo English professors Ralph Maud and George Hochfield, philosophy professor Newton Garver, and poet George Starbuck) challenged New York State’s “Feinberg Law,” which disqualified from employment any teacher who made “treasonable or seditious” utterances or distributed “treasonable or seditious” writings, or who advocated or taught “overthrow of the government by force, violence or any unlawful means.” The national AAUP office provided critical, if modest, financial support to the plaintiffs.
The Supreme Court under Chief Justice Earl Warren had, in the early 1960s, chipped away at the worst excesses of the witch hunt, but Justice William Brennan’s majority opinion in Keyishian dismantled the entire enterprise. The Feinberg Law was unconstitutionally vague, Brennan said; then explained with a series of rhetorical questions. Is “the teacher who carries a copy of the Communist Manifesto on a public street” advocating sedition? “Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence” violate the law? The “uncertainty as to the scope of its proscriptions” made the Feinberg Law “a highly efficient in terrorem mechanism.”
There followed the most famous language in Keyishian: “our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
The decision had a second important facet. The Feinberg Law made membership in the Communist Party, or any other group listed by the state Board of Regents as “subversive,” prima facie evidence of disqualification from teaching. This concept of guilt by association was a critical component of the witch hunt, and had been approved by the Supreme Court repeatedly in the 1950s, as long as the employee had “knowledge” of the group’s unlawful purposes. But guilt by association is not an acceptable legal rule, Brennan said, unless an individual has “a specific intent to further the unlawful aims of an organization.” Should the result be any different because teachers and professors “have captive audiences of young minds?” On the contrary, the First Amendment is especially important in schools: “curtailing freedom of association” has an impermissibly “stifling effect on the academic mind.”
The inspiring language of Keyishian has been an article of faith for both the AAUP and the ACLU, where I worked for years as a First Amendment lawyer and often cited the case in my briefs. But Brennan left many questions unanswered, and Keyishian has had a rocky career in the courts. For one thing, Brennan did not distinguish between the core of academic freedom—teaching and research—and outside political activity: what the AAUP calls extramural speech. Keyishian was decided just a year before the Supreme Court ruled that all public employees have a First Amendment right to speak out, as citizens, on matters of pubic concern. Some have argued that since all public employees now have First Amendment protection—at least theoretically—teachers are not entitled to anything extra.
Another argument is that First Amendment academic freedom is really just a matter of protecting universities as institutions against encroachments by the government. Individual teachers should not get special protection because, first, this might conflict with the collective judgment of faculty and administration on such matters as promotion and tenure; and second, because the First Amendment only applies to the actions of government (including public schools and universities); thus, it would be inequitable to give greater constitutional protection to the work of those employed at public institutions than those employed at private ones.
These arguments essentially reject Keyishian’s very specific protection of individual public school and university teachers, not because they are some sort of superior beings, but because intellectual freedom is essential to their job of education. Viewing academic freedom as primarily a matter of collective governance rather than individual right leaves the idiosyncratic professor at the mercy of bureaucrats or risk-averse colleagues, even though she may be a brilliant scholar and the source of the next great breakthrough in her field.
And the fact that the First Amendment does not apply to the actions of private school and college administrations is not a reason to abandon it for those who labor at public institutions. First Amendment principles and judicial decisions set the tone for academic freedom at public and private schools alike; some of America’s greatest writing and deepest moral imperatives are found in Supreme Court opinions, including Justice Brennan’s warning that loyalty tests cast a “pall of orthodoxy over the classroom.”
The Supreme Court’s 2006 decision in Garcetti v. Ceballos put new urgency into this debate about the scope and meaning of academic freedom. Garcetti was the culmination of a line of cases cutting back on First Amendment protection for public employees’ on-the-job speech. The case involved a district attorney who was punished after reporting misrepresentations on search warrant affidavits. “When public employees make statements pursuant to their official duties,” Justice Anthony Kennedy wrote for the Court, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Justice David Souter wrote an alarmed dissent in Garcetti, citing Keyishian and expressing hope that the Court majority did not “mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’” In response, Kennedy inserted a caveat in his majority opinion: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
This grudging and ambiguous acknowledgment of First Amendment academic freedom leaves the status of Keyishian insecure, to say the least. Which is all the more reason why, on its 45th birthday, we should celebrate the reasoning and rhetoric of Keyishian, promote its values, and recall the sobering historical circumstances that produced it.