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Priests of Our Democracy

Davis Markert Nickerson Academic Freedom Lecture
University of Michigan, October 23, 2013

[Also available on You Tube.]

Marjorie Heins

I’m deeply honored to be giving this year’s academic freedom lecture, especially considering the formidable qualifications of some of my distinguished predecessors – among them Nadine Strossen, who was president of the American Civil Liberties Union when I worked there as a First Amendment lawyer in the 1990s. Nadine was not exactly my boss, but she was a great colleague, and she set an example of commitment, energy, and intelligence that few of us could match.

It was during my time at the ACLU that I really began to think about academic freedom, and that my book, Priests of Our Democracy, began to take shape. In those days, I dealt with countless controversies that touched on campus free speech – from students relegated to obscure and distant “free speech zones” for their protests, to professors forced to remove classic nudes from classroom walls on grounds of possible sexual harassment.

In the last case I worked on, the ACLU represented six professors who objected to a Virginia law barring them from accessing anything “sexually explicit” on their office computers. It seemed like a slam-dunk academic-freedom case. The ban presumably included literature by D.H. Lawrence, James Joyce, or Algernon Charles Swinburne, a 19th century poet of somewhat kinky sexual tastes. It presumably included psychological texts by anyone from Sader-Masoch to Kinsey to Doctor Ruth – not to mention much other legitimate grist for the academic mill. And as it happened, we won that case – but not for long. The State of Virginia appealed, and a conservative majority of judges on the federal Court of Appeals for the Fourth Circuit ruled that professors don’t have any First Amendment protection for their job-related research and teaching.1

How did this bizarre and still much-contested ruling come about? That’s part of the story I will tell you in this lecture, so stay tuned.

What I ’d like to do today is:

First, give you perhaps the shortest-ever summary of how the Supreme Court came to recognize a First Amendment right to academic freedom, in response – admittedly, rather belated response – to the anti-communist investigations that afflicted education and virtually every other aspect of American life during what we call, in shorthand, the McCarthy era;

Then, acquaint you – necessarily briefly – with a few of the interesting characters I met in the course of my research, sometimes in person, sometimes by reading about them in library archives;

Then, give you an also necessarily brief overview of some of the conflicts and ambiguities that afflict the doctrine of academic freedom in the courts today;

And finally, I’ll describe three recent controversies – what I call my not-so-hypothetical hypotheticals – that make us think more deeply about what academic freedom means as a matter of both First Amendment right and good educational policy. That is, what are its scope and limits?

So, on to Part I: The Supreme Court Discovers Academic Freedom

In all of the cases I worked on at the ACLU that touched on teaching, scholarship, or other campus free speech, I would cite the stirring language in Supreme Court decisions from the late 1950s and the ‘60s – in particular, two cases that recognized the harm to intellectual freedom caused by the investigations and purges of the McCarthy period, which engulfed, among hundreds of other victims, the three scholars for whom this lecture is named.

The first was a 1957 case called Sweezy v. New Hampshire. Professor Paul Sweezy was charged with the crime of contempt for refusing to answer a few intrusive and overly simplistic questions put by the attorney general of New Hampshire about his knowledge of people working in the Progressive Party and about the content of a lecture he had given at the state university. Because the attorney general’s scope of investigative authority was so broad and vague, the Court reversed Sweezy’s conviction on due process grounds. In the course of his opinion for the Court, Chief Justice Earl Warren wrote (and this language may be familiar to many of you):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. ... Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.2

The other great academic freedom case I loved to cite was Keyishian v. Board of Regents in 1967. By this time, the anti-communist fervor of the ‘50s had receded sufficiently for Justice William Brennan to pull together a 5-4 majority, not just to disapprove the excesses of a particular investigation or chip away around the edges of a loyalty program, but to invalidate the basic mechanisms of the heresy hunt: guilt by association with the Communist Party or any other group considered “subversive,” and punishment, through loss of employment, for advocating or publishing vaguely defined categories of “seditious” or revolutionary ideas.

And because the law challenged in Keyishian applied to teachers, Justice Brennan unleashed some powerful rhetoric about academic freedom, which, he said, “is of transcendent value to all of us and not merely to the teachers concerned,” and “is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”3

The inspiring language of Sweezy and Keyishian has become part of our national literature, but their hymns of praise to academic freedom were short on specifics. I found myself hungry to learn more—about the scope and limits of this “special concern of the First Amendment”; about what had been happening politically that gave rise to both the soaring rhetoric and the many defeats in the 1950s for civil liberties; and about what has happened to academic freedom in the years since.

On to Part II, which I call Harry, Vera, Felix, and Bill

It’s always interesting to know something about the people whose names end up on Supreme Court cases. It turned out that the same Harry Keyishian who became the namesake of Keyishian v. Board of Regents in 1967 was, 15 years before, a Queens College undergraduate when the Senate Internal Security Subcommittee (or the SISS, as it was known) came to New York City to investigate suspected communist or otherwise subversive elements in the educational system and pressure the board that ran the city’s public colleges to fire anybody who was thought suspect or who did not cooperate. Like so many of the political investigations of this era, the SISS interrogations could go well beyond the proverbial “$64,000 question” about past or present Communist Party membership, and could cover books and magazines the teachers read, meetings and concerts they attended, petitions they signed, funds they contributed to loyalist Spain or to support of refugees after the fascist victory in the Spanish Civil War, enrollment in the left-liberal American Labor Party, and much more of the same ilk.

A favorite professor of Harry’s, the economist Vera Shlakman, was one of the first to be summoned by the SISS. Shlakman had sterling credentials, including a PhD from Columbia, and was the author of Economic History of a Factory Town, a groundbreaking book in the relatively new field of labor history. In her testimony, she objected that the investigations were making a mockery of political and intellectual freedom.

But even before the case of the Hollywood Ten - those infamous directors and screenwriters who refused to cooperate with the House Un-American Activities Committee back in 1947, and went to jail for their defiance - the courts had rejected the First Amendment freedom of speech as a basis for resistance to politically driven legislative investigations, and so Shlakman cited the Fifth Amendment as well in explaining her refusal to answer. She - and in the ensuing months, more than a dozen other New York professors who resisted the SISS - were summarily fired.

Vera was unemployed for a year, finally found work as a secretary, and was able to return to academia eight years later, first at Adelphi, later at Columbia School of Social Work. Now, eight years might not seem like all that much – many victims of the academic heresy hunts were never able to return to their chosen profession – but it is difficult to measure the toll taken by these sorts of experiences on any individual. In addition to the stigma, the economic hardship, and the disappointed ambitions, there was the ever-present awareness of FBI surveillance. In Vera’s case, she wrote some articles, but never published another book. Yet, as one scholar has written – and I find the observation particularly meaningful as a summary of the broader effects of the McCarthy era on intellectual life: “in some sense those of us who do labor history remain the intellectual children of Vera Shlakman and those like her who belonged to a generation stopped in its tracks.”4

Our friend Harry Keyishian, meanwhile, an apolitical campus girl-chaser (as he told me) before the firing of Professor Shlakman, joined a student protest committee. It was his first foray into politics. Ten years later, as we know, he became the lead plaintiff in the lawsuit that finally ended anti-subversive public employee loyalty programs. Few lawyers at the time thought that Harry and his four fellow plaintiffs would succeed in striking down New York State’s Feinberg Law, a sweeping Cold War era measure that made “treasonable or seditious” utterances, distribution of materials advocating revolution, or membership in any of a list of allegedly subversive organizations grounds for firing teachers and professors at public schools and universities. But Harry did win. He called it his “revenge on the fifties.”

The personalities that populated the Supreme Court bench in these years were easily as colorful as the teachers and students whose lives were changed by the anti-communist purge. William O. Douglas, who wrote a series of prescient dissents from decisions in the early ‘50s that upheld virtually any loyalty oath, investigation, or politically driven criminal conviction that came before it, was famously antagonistic to Felix Frankfurter, whom he considered a pompous windbag. Frankfurter did tend to go on at the justices’ conferences, in long lectures to his brethren. After one such session, Douglas, no slouch when it came to controversy, circulated a memo calling Frankfurter’s conduct “insolent … - a degradation of the Conference and its deliberations.”5 So much for the myth of sweet collegiality among our judicial philosopher kings.

Frankfurter’s lectures often championed the virtues of judicial restraint. But I hadn’t realized quite how frankly political his idea of judicial restraint was until I happened upon another memo in the Library of Congress archives, from him to Justice Brennan, regarding a First Amendment challenge by a left-leaning organization called the World Fellowship to a state attorney general’s demand that it disclose various information about its employees, and the identities of all its speakers and guests. Frankfurter’s memo argued that “the vast appropriations that the Congress votes each year” to J. Edgar Hoover persuaded him to uphold the legitimacy of the investigation.6 Not exactly a model of dispassionate judicial reasoning, I mused as I read it.

There’s much more in the book about Bill and Felix, as well as Justices Robert Jackson and Hugo Black, and other members of the Vinson and Warren Courts, and about the ways in which politics shapes jurisprudence.

But, on to Part III: What is Academic Freedom, Anyway, and What Are Its Limits?

Felix Frankfurter, incidentally, departed from his beloved judicial restraint when it came to academic freedom. He wrote a concurring opinion in the Sweezy case that would have straightforwardly invalidated the New Hampshire attorney general’s questions to Professor Sweezy on First Amendment academic freedom grounds. (Chief Justice Warren’s opinion for the Court in Sweezy stopped short of a First Amendment ruling.)

Frankfurter’s Sweezy concurrence articulated a view of academic freedom that has been debated ever since. He said the essence of it is the right of a university “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”7 But the Sweezy case turned on the rights, not of the university but of the professor, both in the classroom and in his so-called “extramural” activity - that is, advocacy and political association that’s not part of the academic job but that takes place, whether literally or figuratively, outside the university’s walls. So, does First Amendment academic freedom in fact belong to individual teachers, to the university as an institution, or both? Frankfurter may not have seen any conflict, but there has been plenty of conflict since.

The Supreme Court has since recognized that First Amendment academic freedom protects both the teacher and the institution. But it didn’t explain what happens when these rights collide—for example, when someone denied tenure at a public university claims the decision violated her academic freedom, but the administration responds that it has a near-absolute right to decide who shall teach and what shall be taught. (I say public university here because, as many of you know, the First Amendment does not restrict the actions of private employers.)

Courts almost always defer to universities in tenure cases, and surely it’s right that the school gets to decide many questions about teaching and scholarship—for example, what courses will be in the curriculum, and whether scholarly work is of sufficiently high quality to merit hiring, promotion, and that rapidly disappearing commodity, tenure. But academic freedom is fundamentally about the individual teacher. As Frankfurter himself wrote in an early loyalty oath case - and I use his metaphor for the title of my book - teachers are (or at least, are supposed to be) “the priests of our democracy” because they “foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.”8

The idea is that academic freedom, which seems at first an elitist right that belongs only to pointy-headed intellectuals, is in fact essential to democracy. Or, as Justice Brennan put it in Keyishian, academic freedom is “of transcendent value to all of us and not merely to the teachers concerned.”

Frankfurter may not have perceived any conflict between individual and institutional academic freedom. Like the American Association of University Professors (the “AAUP”), whose 1915 Declaration of Principles on Academic Freedom and Tenure described the university as a community of scholars who should be able to make educational decisions without interference by those philistines, as they saw it, on boards of trustees, Frankfurter was expressing an idealized notion of education conducted by priestlike scholars who would collectively decide “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” He probably did not foresee today’s highly bureaucratized university, with its layers upon layers of provosts and sub-provosts and vice-provosts, and deans and sub-deans and vice-deans, and its armies of contingent faculty who have no voice in university governance.

At some point, we may get further elucidation from the Supreme Court on the proper balance between institutional and individual academic freedom - if, indeed, the current Court will even recognize that individual academic freedom still exists. Why is this long-held verity of constitutional law now in doubt? The explanation requires a short, but I hope not too convoluted, digression – in the course of which we’ll get an answer to the question of why a U.S. court of appeals denied any First Amendment protection in the case I mentioned about half an hour ago, involving those Virginia professors who wanted to access “sexually explicit content” on their office computers.

This country’s early controversies over academic freedom, which I recount in the first chapter of Priests of Our Democracy, involved retaliation against professors whose outside political activity - that is, their extramural speech - was not to the liking of boards of trustees. So it was not surprising that when, in 1915, the AAUP was formed, its founding Declaration of Principles identified three parts to academic freedom: not only classroom teaching and scholarly research, but also extramural speech.

Likewise, the Supreme Court’s recognition of academic freedom in Sweezy and Keyishian was mostly about extramural speech – a response to the immense political pressures of the McCarthy era, to deprive people who were often wonderful teachers and scholars of their jobs because of their political beliefs and association - that is, their extramural speech. As Keyishian v. Board of Regents established, they should not have had to relinquish their First Amendment rights to speech and association as a condition of employment. But why was this specifically a question of academic freedom and not the First Amendment rights of all public employees?

The answer is an accident of legal history. It was not until a year after Keyishian, in 1968, that the Supreme Court got around to extending First Amendment protection to all public employees - or at least, a measure of First Amendment protection. The Court said they couldn’t be punished for speech “as citizens,” on matters of public concern, unless their expression could be shown to interfere with “workplace efficiency.”9 The case was Pickering v. Board of Education, and ever since, some commentators have argued that there’s no longer a need for the “extramural speech” prong of academic freedom. That is, teachers at public universities have the same, and no greater, First Amendment rights than other public employees. And subjecting teachers to the same Pickering “balancing test” as everyone else in public employment would do much to combat charges of elitism and special pleading and thus make courts and the public more hospitable to core academic-freedom claims: those regarding the teaching and scholarship that are the intrinsic parts of the academic job.

This makes sense to me - with the following caveat. A university is a quintessential marketplace of ideas. It would therefore contradict the very function of a university to punish a professor for extramural speech on the ground that it interferes with workplace efficiency. That is, free inquiry and dissent, not uniformity and political orthodoxy, are the essential components of a healthy - and efficient - academic workplace. A university that allows free expression is efficient; one that stifles it is not.

Certainly, then, complaints from trustees or indignant alumni about a maverick professor’s extramural speech, including threats to withhold donations, should not be grounds for concluding that the professor’s speech interferes with workplace efficiency. In that sense, academic freedom - the essence of higher education - feeds into the First Amendment balancing test that applies to all public employment. And, to the extent academic freedom is a matter of good educational policy – not just law –, the same considerations should apply to private institutions of higher learning. (I leave for another day the question of whether and how academic freedom should protect teachers in K-12 education. I wouldn’t want the current Supreme Court get anywhere close to that one.)

Now, somewhere along the line, the Pickering balancing test fragmented. The Supreme Court began to view speech on the job - complaints about the boss’s management style, for example - not to involve matters of public concern and therefore to have no First Amendment protection. Sometimes, it’s true, internal job-related complaints are not of great public concern, but in other cases - whistleblowing being the most prominent example - they are of immense public concern. The Court’s increasingly rigid distinction between job-related speech by a public employee, which it says has no First Amendment protection, and speech of public concern, contributed as a citizen, which it says enjoys limited protection, has led to some bizarre results. It certainly accounts for the controversial court of appeals ruling in that case involving the Virginia professors.

In the latest round of its increasingly radical shrinkage of public employee rights, the Supreme Court in a 2006 case called Garcetti v. Ceballos denied any First Amendment protection to an assistant prosecutor who informed his superiors about fraudulent statements in an affidavit for a search warrant, and, after his boss refused to do anything about it, testified to this effect in connection with a defense motion challenging the warrant. He was punished with reassignment, transfer, and denial of a promotion. But the Supreme Court dismissed his claim that the retaliation violated his First Amendment rights. “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.”10

Now, the notion that there is no First Amendment protection for an employee blowing the whistle on fraud in the prosecutor’s office is shocking enough, but what are the implications for academic freedom? In response to an alarmed dissent from Justice Souter pointing out that professors’ classroom teaching and scholarly research are also done “pursuant to their official duties,” Justice Kennedy added a caveat to his opinion in Garcetti. He wrote: “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.”11

As I remark in Priests, the Court’s once full-bodied appreciation of academic freedom as “a special concern of the First Amendment” was now reduced to an ambiguous aside.

At last, Part IV:

Finally, here is the first of the three not-so-hypothetical situations I promised you. Earlier this year, the Freedom From Religion Foundation accused a physics professor at a midwestern state university of teaching a course in religious indoctrination, not science. Indeed, his syllabus was replete with creationist texts. Arguments were made that academic freedom protected both the topic of the course and the choice of assigned readings.

Putting aside the problem of church-state separation (the Foundation argued that offering the course at a state institution violated the First Amendment Establishment Clause), it seemed to me that the academic freedom argument was misplaced. Certainly, the freedom to teach does not include the right to offer a course that the institution – informed, hopefully, by faculty experts and department heads – does not think amounts to good science. The controversy wasn’t about the choice of particular texts or the conduct of class discussion, but about the presence or absence of scientific foundation for the entire course.  
But what if the chair of the physics department, or the university’s curriculum committee, decides that a course in creationism masquerading as science is just fine? Reasonable scholars won’t make these mistakes, we hope; but whatever may be the difficulty of drawing lines when it comes to classroom teaching or reading assignments, I would maintain that the institution’s academic freedom trumps the individual professor’s when it’s a question of offering a course at all.

My second example involves not classroom teaching but scholarship. Some of you may be familiar with this one. Former DePaul University Professor Norman Finkelstein’s scholarly writings criticize what he calls “the Holocaust industry,” and argue that Israel uses the Nazi genocide as a justification for all manner of objectionable policies today. In 2007, when Finkelstein was up for tenure, Harvard law professor Alan Dershowitz attacked him in a letter that he distributed to the DePaul faculty; and he lobbied hard for the university to reject the tenure application. Dershowitz prevailed, despite favorable votes from Finkelstein’s Department of Political Science and the College of Arts and Sciences personnel committee. The New York Times described Dershowitz’s campaign as “a full-court press.” Finkelstein called the tenure denial “transparently political” and “an egregious violation” of academic freedom.12

Finkelstein later reached a settlement with the university in which it
acknowledged that he was “a prolific scholar and outstanding teacher.” Would he - and should he - have won a First Amendment case if DePaul had been a public university? Although courts will, as I’ve noted, give broad deference to the judgments that go into tenure decisions, this may have been the rare case where a court should have found the decision was improperly based on the controversial nature - not the quality - of Finkelstein’s scholarship.
I come to my third example - and probably the most incendiary of the three. Professor Ward Churchill of the University of Colorado wrote an article after September 11, 2001, in which he attacked the stock traders who worked at brokerage firms in the World Trade Center as “little Eichmanns” because, he said, they were part of a “technocratic corps at the very heart of America’s global financial empire” and were thus complicit in the suffering and loss of life caused by American military operations. The university, besieged with outraged demands for Churchill’s firing, set up a committee to investigate him. The committee found some instances of what it called “research misconduct” - faulty footnoting and the like, and recommended his dismissal.

A jury rightly concluded that “research misconduct” was an obvious pretext for firing Churchill because of his toxic remark about “little Eichmanns.” But the trial judge decided he should lose his case anyway, because the committee that recommended his firing was entitled to “quasi judicial” immunity from suit. The Colorado Supreme Court affirmed this bizarre ruling,13 which goes to show that really annoying plaintiffs can make really bad law, and that courts remain vulnerable to political pressures, now as in the days of the anti-communist purge.

Should there be an exception to First Amendment protection for extramural speech when it’s sufficiently outrageous to the majority of the community? I don’t think so. One of the trial judge’s alternative theories in Churchill’s case was that even if he hadn’t overturned the jury’s verdict, he would not have ordered the university to reinstate Churchill, because the campus atmosphere was poisoned: too many people did not like him. But free speech is naturally contentious, and using majority animosity to justify disqualification from employment amounts to allowing a heckler’s veto. I hope that we haven’t reached the point where not “doing lunch well” is a disqualification from an academic job.

Now, some of you may disagree with my analysis of these three not-so-hypothetical cases, and may draw the line differently between academic freedom for individual teachers and university control of curriculum, scholarship, or extramural speech. I welcome that disagreement; it’s the stuff of free speech, after all.

Conclusion: One Final Thought

When the AAUP first articulated the now commonly accepted three-part definition of academic freedom in 1915, it linked the concept inextricably to tenure, without which, its founders thought, professors would not have the job security needed for them to speak freely without fear of reprisal. Today, tenure is dramatically shrinking, tenure-track jobs are getting as rare as fish on bicycles, and contingent faculty make up 75% of undergraduate teaching ranks. As one journalist put it, an army of adjuncts are now “the hamburger flippers of the academic world.”14 Academic freedom in this environment has to be divorced from tenure and understood as the essence of higher education for everyone involved: adjuncts, non-tenure track instructors, graduate students, and yes, even those sometimes unruly undergraduates.

As I hope I’ve made clear, academic freedom is by no means an absolute right, and its limits can be murky. But preserving it - and retooling it to meet the needs of today - are more important than ever. I think Davis, Markert, and Nickerson would agree.

1. Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000).

2. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

3. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

4. Alice Kessler-Harris, “Classics Revisited: Vera Shlakman: Economic History of a Factory Town.” 69 Intl Labor & Working-Class History 195 (2006).

5. Douglas to Frankfurter, 5/29/1954, Hugo Black Papers, Library of Congress, 317:October Term 1953 Conference memoranda.

6. Frankfurter to Brennan, 1/7/1959, William Brennan Papers, Library of Congress, I:19:3.

7. Sweezy, 354 U.S. at 263.

8. Wieman v. Updegraff, 344 U.S. 183, 196-7 (1952).

9. Pickering v. Board of Education, 391 U.S. 563, 568(1968).

10. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

11. Garcetti, 547 U.S. at 425.

12. Patricia Cohen, “Outspoken Political Scientist Denied Tenure at DePaul,” NY Times, 6/11/2007, 2.

13. Churchill v. University of Colorado, 2012 CO 54.

14. Jennifer Washburn, University, Inc.: The Corporate Corruption of Higher Education 203 (2005).

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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