BY MARJORIE HEINS

Marjorie Heins is the author of Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, a history of McCarthy era attacks on teachers and professors, of the Supreme Court’s initially acquiescent response, and of the Court’s eventual vindication of academic freedom in the 1967 Keyishian case.

By Marjorie Heins

Keyishian v. Board of Regents, decided by a slim 5-4 vote of the Supreme Court on January 23, 1967, is widely regarded as the Court’s most important statement on academic freedom. A response — although belated — to the excesses of America’s Cold War anticommunist crusades, Justice William Brennan’s opinion in Keyishian did much to end the remaining loyalty programs and blacklists of that era, and contained quotable, eloquent language about the importance of education and the free exchange of ideas. Fifty years later, with many changes in the political landscape and in Supreme Court personnel, what is left of Keyishian?

Keyishian struck down New York State’s Feinberg Law, a typical piece of Cold War era anti-subversive legislation that established an elaborate administrative apparatus for investigating the loyalty of every publicly-employed teacher in the state, and for firing anyone who made “treasonable or seditious” utterances or distributed “treasonable or seditious” writings, or who advocated “overthrow of the government by force, violence or any unlawful means.” It applied to professors at public colleges and universities as well as public school teachers. The Supreme Court had upheld the Feinberg Law in 1952, and the conventional wisdom was that Harry Keyishian and his four fellow plaintiffs had little chance of overturning that ruling when they brought a new challenge to the law a decade later.

Justice Brennan gave two reasons for rejecting the earlier case and invalidating the Feinberg Law. First, its terms were unconstitutionally vague — that is, nobody could tell what “treasonable or seditious” actually meant. He 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.”

Second, the law operated through guilt by association: it made membership in the Communist Party, or any other group listed by the state Board of Regents as “subversive,” prima facie grounds for disqualification. Guilt by association was a critical component of the Cold War witch hunt, and the Supreme Court had repeatedly approved it in the 1950s. In Keyishian, Brennan narrowed the concept to the point of invisibility: someone can only be punished for association with a group, he said, if he or she has “a specific intent to further [its] unlawful aims.” This was impossible to prove for the overwhelming majority of people who had been hounded out of their jobs merely for alleged membership in a disapproved organization.

Keyishian has been remembered, and quoted, more for its broad rhetoric than for these two specific holdings. Brennan waxed eloquent on the importance of academic freedom, which he said “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.”

Despite this inspiring language, there were problems right from the start in interpreting Keyishian. Did Brennan mean academic freedom to include public school as well as college teachers? Presumably yes: they were clearly covered by the Feinberg Law, although the five plaintiffs who challenged it were professors. Academic freedom for elementary school teachers, bound as most of them are to specific pedagogical goals, was rarely a serious question, and even for high school teachers, it did not take long, in cases after Keyishian, for academic freedom to be outweighed by the perceived prerogatives of school boards and administrators.

Problem number two was that Brennan in Keyishian did not distinguish between the core of academic freedom—teaching and research—and outside political activity: what the AAUP calls extramural speech. Indeed, it wouldn’t have made sense for the Court to make such a distinction, because the Feinberg Law for the most part targeted extramural speech. But just a year later, in the case of Pickering v. Board of Education, the Court ruled that all public employees have a First Amendment right to speak out, as citizens, on matters of pubic concern, subject to a balancing test based on whether the speech interferes with workplace efficiency. Some pundits argued that since all public employees now had First Amendment protection—albeit of a limited sort—teachers and professors were not entitled to anything extra.

Still another problem was that the First Amendment only applies to the actions of government, and presumably academic freedom is just as important in private universities. In fact, as more cases made their way through the courts, some scholars (and judges) argued that if the First Amendment encompasses academic freedom at all, it is really a matter of protecting universities as institutions—public or private—against encroachments by government on their freedom to decide matters of hiring, firing, curriculum, and administration. The Supreme Court remained on the fence, noting in a 1985 case that academic freedom “thrives not only on the independent and uninhibited exchange of ideas among teachers and students, … but also, and somewhat inconsistently, on autonomous decision making by the academy itself.”

To measure the distance traveled since 1967, one need only read the Court’s 2006 decision in Garcetti v. Ceballos. The case involved a district attorney who was punished for whistle blowing, and brought suit claiming violation of his First Amendment rights. He lost, in a decision by Justice Anthony Kennedy, who starkly announced that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

What did this mean for professors, whose “official duties” obviously include teaching and writing? In response to Justice David Souter’s alarmed dissent, expressing hope that the Court did not “mean to imperil First Amendment protection of academic freedom in public colleges and universities,” Kennedy inserted a caveat that created more doubt than assurance about Keyishian‘s survival. “There is some argument,” Kennedy said (my italics) “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.” What had been one of our great First Amendment precedents was now reduced to a question not decided by the Court.

But I don’t mean this essay to be all gloom and doom. Although the future prospects for a First Amendment-based right of academic freedom are not sunny in the Supreme Court at the moment, great decisions are about much more than establishing a legal precedent. They become part of our culture, our literature, and our history. Justice Brennan’s decision in Keyishian not only played an important role in history by definitively rejecting the political blacklisting and guilt by association that still plagued American life, but it masterfully articulated the importance of intellectual freedom on campus. In that sense, Keyishian validated and reinforced principles that have since become well-established—at least on paper—in academia, and that can guide our struggles today over trigger warnings, speech codes, and sundry other threats.

Finally, as we face the free-speech challenges of the next four years, we can think of Keyishian also as a story of political courage—the courage of Harry Keyishian, George Starbuck, Ralph Maud, George Hochfield, and Newton Garver—who risked their jobs to resist a repressive law during another perilous time in our history.