Marjorie Heins, founder of The Free Expression Policy Project, is the author of the new book Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (NYU Press, February 2013). In her book (watch video interviews with her), Heins examines the critical Supreme Court cases of the 1950s and 1960s that first upheld and then later struck down loyalty oaths, and established the legal right of academic freedom. John K. Wilson interviewed her via email for Academe Blog.

Academe Blog: You argue that many organizations failed to fight McCarthyism and “The AAUP, champion of academic freedom, did not do much better. Its 1947 position that ‘individual culpability,’ not guilt by association, should be the standard for dismissal had no effect, for the organization never tried to enforce it.” Do you think the AAUP would have been effective in turning the tide on McCarthyism in academia if it had vigorously tried to enforce its principles? Or would the AAUP in the 1950s simply have revealed how little power it had to enforce its policies?

Marjorie Heins: I doubt that the AAUP would have been effective on its own, but as I write in the Conclusion, it’s possible that if a critical mass of university administrators had resisted, instead of caving in to legislative investigators like McCarthy or the House Un-American Activities Committee, the heresy hunt would not have made nearly as much headway in academia, and “much of the damage to individuals, to free inquiry on campus, and to political dissent by intellectual leaders in the wider society could have been avoided.”

Academe Blog: What caused the Supreme Court to change its position on the loyalty cases during the 1950s and 1960s? Was it strictly a matter of conservative justices being replaced by liberal ones, or did changes in American culture (and guilt about what happened during McCarthyism) play a role in these shifts?

Marjorie Heins: Both factors played a role—a change in Supreme Court personnel combined with a gradual relaxation of Cold War anti-communist panic and increasing popular revulsion against the excesses of McCarthyism. But even with these changes, the Supreme Court moved cautiously and incrementally, chipping away at loyalty oaths and legislative inquisitions, and did not straightforwardly invalidate the entire investigative apparatus of a state loyalty law until the Keyishian case in 1967. And it was often difficult, even on the Warren Court, to find a majority of five justices to strike down loyalty laws. The justices were tremendously sensitive to the political repercussions of their decisions, as I document with quotes from their memos to each other.

Academe Blog: The shift in the Supreme Court’s approach to academic freedom was also matched by dramatic changes in how the AAUP understood academic freedom, leading to the 1970 Interpretative Comments. Was the AAUP influenced by the Supreme Court’s decisions to take a more radical and absolutist interpretation of academic freedom, or were both the Court and AAUP influenced by a growing counter-culture including the Free Speech Movement and the anti-Vietnam War protests?

Marjorie Heins: I don’t consider either the Supreme Court’s First Amendment decisions in the 1960s or the AAUP’s 1970 Interpretive Comments to be radical or absolutist. Instead, they are both carefully nuanced appreciations of the importance of free inquiry, balanced against the needs of universities (and other employers) to play their legitimate roles in society. For example, under the Interpretive Comments, even “extramural” statements by a professor can be a basis for discipline if they “clearly demonstrate[] the faculty member’s unfitness for his or her position.” The political upheavals of the sixties, in particular the anti-Vietnam War movement, had a profound effect on the Court and, I am sure, the AAUP as well. But there was almost as much backlash as there was support. For example, one of the great free-speech dissenters of the McCarthy era, Hugo Black, was so outraged by what he considered the excesses of the anti-war movement that he angrily dissented from the landmark Tinker decision, which upheld students’ First Amendment right to wear black armbands to school in silent protest of the Vietnam War.  Black wrote: “groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins.”

Academe Blog: Your book explores in depth the 1967 Keyishian case, when the Supreme Court established a legal right of academic freedom. In an essay last year for Academe Blog, you called “the status of Keyishian insecure” in the wake of the Garcetti ruling and the academic cases in lower courts that have invoked Garcetti. In an interview last year with Academe Blog, Harry Keyishian worried that “the case is being chipped away at by later courts.” Why has that happened? And if today’s Supreme Court was asked to reconsider Keyishian, would it still uphold the right of academic freedom?

Marjorie Heins: At the time Keyishian was decided, the Supreme Court had not yet recognized a First Amendment right of public employees to speak out on matters of public concern without retaliation from their bosses. Because teachers were the employees involved in Keyishian, Justice Brennan’s opinion for the Court focused on academic freedom as “a special concern of the First Amendment.” Some commentators have argued that once the Court began to develop a broader concept of public employee free-speech rights, Keyishian was superseded; then, when the Court started cutting back on those rights, teachers were included in the cutback and academic freedom got buried in the dust—or nearly so.

In Garcetti (2006), the Roberts Court did its most devastating hatchet job ever on public employee free-speech rights, but it did leave open the possibility 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.” So, the question of Keyishian’s survival is still open. I hesitate to make predictions about what the Court will do if the question is presented.

Academe Blog: The Supreme Court will be deciding an important case on affirmative action in higher education this summer. The 1978 Bakke case helped expand the idea of “institutional academic freedom” which has been used to undermine the Keyishian precedent. How do you think the Supreme Court will rule in the Fisher case, and will their opinion affect academic freedom?

Marjorie Heins: The Court in Fisher will probably be closely divided; one swing justice could make the difference. But whatever happens to affirmative action, I doubt that the Court will reject the language of Bakke recognizing that “the freedom of a university to make its own judgments as to education” is part of academic freedom. In fact, Justice Powell’s opinion in Bakke relies heavily on the Keyishian case. He saw no conflict between the individual academic freedom of professors and the institutional autonomy of the university.

Academe Blog: If the legal right of academic freedom is in danger of disappearing, what should organizations like the AAUP do in response? Do they need to fight in court and try to educate judges about the importance of academic freedom? Do they need to seek state laws protecting academic freedom? Do they need to unionize more campuses? Do they need to change college policies to make academic freedom a fundamental, enforceable principle? What should be the AAUP’s priorities if Keyishian and the legal right of academic freedom fade into oblivion?

Marjorie Heins: One of the many things we can learn from the McCarthy era is that courts, including the Supreme Court, rarely get too far ahead of the election returns; sometimes, they fall behind. Courts play an important role in times of political repression, but we shouldn’t rely on them to preserve and protect academic freedom; that has to come from the higher-education community itself. The big challenges to academic freedom today are the increasing corporatization of universities and the diminishing status of faculty governance—indeed, the diminishing numbers of tenured and tenure-track professors, as universities hire armies of adjuncts and other contingent faculty who have no job security and no role in governance. I like all of your suggestions: don’t give up on the courts, but also seek new state laws, support union organizing campaigns, and make academic freedom, which is already incorporated in most university policies, an enforceable contract right.