BY JOHN K. WILSON
January 23, 2022 marks the fifty-fifth anniversary of the US Supreme Court’s ruling in what may be the most important legal case protecting academic freedom: Keyishian v. Board of Regents. The poetic words of Justice William Brennan’s majority decision have echoed through our legal system and become a fundamental part of how we understand and defend academic freedom.
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.
At a time when state legislators are trying to ban critical race theory from the classroom, the Keyishian case is more important than ever.
The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.
While lower courts have often ignored, distorted, and abandoned the Keyishian precendent, as Marjorie Heins noted, the case remains an essential monument to academic freedom.
In 2017, the AAUP honored Keyishian as a special guest at its annual meeting to mark the fiftieth anniversary of his case, and he told the crowd: “Thanks for this organization, the AAUP, for formulating, protecting and defending professional standards and the precious tradition of academic freedom.” He declared, “Your work, our work, is more needed than ever.”
In 2012, I interviewed Keyishian for Academe Blog, and to mark this anniversary, that interview is reprinted below. Harry Keyishian is Professor Emeritus of English at Fairleigh Dickinson University, and serves on the Editorial Committee of Fairleigh Dickinson University, where he was the director from 1977 to 2017. He is the author of many books, including Screening Politics: The Politician in American Movies, 1931–2001 (2003) and The Shapes of Revenge: Victimization, Vengeance, and Vindictiveness in Shakespeare (1995).
Academe Blog: What was the atmosphere like on campuses in the early 1960s when this litigation began? Was there a lot of fear about speaking out politically and joining groups that might be called “subversive”?
Harry Keyishian: Things had distinctly loosened up since the oppressive days of the early 1950s. There were several activist progressive organizations at work in Buffalo. The Quakers were a presence. I joined the peace group SANE–promoting a “sane” nuclear policy. We organized a parade in 1963, I recall. We certainly felt the presence of the local police and the FBI were clear presences, but we went about our business without much concern. Several faculty members made no secret of having Marxist sympathies, but were hired without incident. The Cold War was very much on, but the internal atmosphere was much looser. Fortunately, the University of Buffalo (as it was then known) was an institution with respect for free speech.
Academe Blog: Although your name was first on the lawsuit, there was a group of folks who sued along with you. Who were the people involved in this lawsuit, and how did you decide to sue over this?
Harry Keyishian: The true initiator of the suit was poet George Starbuck, who, then working as a librarian, first received the loyalty oath certificate and refused to sign. That alerted the rest of us to the situation. Pretty much everybody opposed the idea of the certificate. “Loyalty oaths” and blacklisting were very much discredited at the time. The only question was how to oppose the process. To make an impact, it had to be opposed by faculty (who potentially could rely on tenure protection) rather than staff. A larger number of us were initially going to refuse to sign (and many signed “under protest”), but eventually it came down to five who are named in the suit. My English Department colleagues George Hochfield and Ralph Maud were two; philosopher Newton Garver, moved by Quaker principles, was another. (The fifth, if I recall, was a member of the Chemistry Department.) We were, I guess, just more stubborn than the rest and decided, for our own reasons, to see the matter through. My name is on the case because the others were on two-year contracts, while I, as a lowly instructor, had only a one-year contract, and therefore was the only one the university could take immediate action against. That suited us fine: we just wanted to initiate a court challenge.
Academe Blog: Did you worry about being blacklisted from colleges because of this litigation, and did anyone’s career suffer any consequences from the lawsuit?
Harry Keyishian: I worried a bit about it, as public universities were likely to have similar oaths, but private colleges were exempt and–hard as it is to imagine today–university teaching jobs were relatively easy to get. Perhaps I was just very naive. However, after taking a year off to finish my dissertation, I had a couple of offers from private colleges. So I can’t claim much anxiety about it. We were very fortunate at the time! My colleagues all did very well, though only Newton Garver stayed at SUNY-Buffalo.
Academe Blog: Did you have any support from the AAUP, the ACLU, or other groups in the lawsuit?
Harry Keyishian: The case would not have gone forward had the AAUP not funded the legal defense. We, the litigants, were certainly in no position to do it. We initially approached the ACLU, but they did not come on board until after the AAUP had sent a check. We also had considerable financial support from our faculty colleagues who had signed, but were in support of our position.
Academe Blog: You were suing the Board of Regents, but the real problem here was the legislature passing a law requiring the Board to keep out subversives. Did you think any administrators and regents supported your efforts to make the politicians stay out of campus decision-making, or did you regard them as supporting these laws?
Harry Keyishian: We had a good deal of covert support from administrators. To give one crucial example, the letter in which I was told that I would not be rehired gave as the only reason my refusal to sign the loyalty oath certificate. That made the legal issue perfectly clear and gave the attorneys a basis for action–to argue that the certificate was improper. It would have been very easy for that dean to have given another reason for not rehiring me–insufficient progress on the dissertation, inadequate publication, poor teaching–anything, really, which would have rendered things moot. Nobody really believed that the oaths were a good thing. It was just a question of what they were prepared to do about it.
Academe Blog: The Supreme Court supported you in a 5-4 ruling. Did you expect to win in the Supreme Court, and were you surprised that it was so close? What do you think would have been the consequences if you had lost?
Harry Keyishian: Despite a report from the UB law school that we would lose–the Feinberg Law, on which the loyalty oath was based, had been upheld only a few years before–were were pretty cocky about winning. It was the Warren Court, after all. And, though we did not know it, we had a brilliant advocate on it in the person of Justice William Brennan, who wrote the decision.
Academe Blog: What do you think has been the impact of the Keyishian ruling in the past 45 years, and do you believe courts today are still upholding it?
Harry Keyishian: This is a question I’ll leave to legal experts, but I understand that the case is being chipped away at by later courts. Still, I think it is well grounded and has worked its way into legal culture pretty deeply. But if things start going bad, I count on five other stubborn people to pop up and do something about it.
John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies.
