A Decisive Win for Academic Freedom
It was a landmark case that ended the era of loyalty oaths in education, and it bears the name of FDU Professor Emeritus of English Harry Keyishian.
Editor’s note: To commemorate of the 50th anniversary of the Supreme Court case Keyishian v. Board of Regents, we are posting this 2014 FDU Magazine article featuring an interview with the lead plaintiff by Academe Blog, a publication of the American Association of University Presidents.
Civil liberties lawyer Marjorie Heins recently wrote Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (New York University Press, 2013). The book documents the anti-Communist investigations that led to political and legal battles culminating in the historic Supreme Court case Keyishian v. Board of Regents. Heins calls it “the U.S. Supreme Court’s most important ruling on academic freedom.”
In the 1960s, Harry Keyishian was one of five plaintiffs who challenged New York state’s Feinberg Law, which disqualified from employment any teacher who made “treasonable or seditious” utterances, distributed “treasonable or seditious” writings or who advocated or taught “overthrow of the government by force, violence or any unlawful means.”
Keyishian, then an instructor at the State University of New York in Buffalo, was the lead plaintiff. The decision was rendered in 1967, two years after Keyishian had joined FDU. The majority opinion was written by Justice William Brennan, who said, “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 also struck a blow for freedom of association, overruling the Feinberg Law’s provision that made membership in the Communist Party or other subversive groups means for disqualification from teaching.
Keyishian has enjoyed a prolific writing career with books including Screening Politics: The Politician in American Movies, 1931–2001; The Shapes of Revenge: Victimization, Vengeance, and Vindictiveness in Shakespeare; Critical Essays on William Saroyan (1995); and Michael Arlen. He also serves as the director of FDU Press and, for more than two decades, has coordinated FDU’s annual Shakespeare Colloquium.
In the following interview, Keyishian looks back at the case and its impact.
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, 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?
HK: 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 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?
HK: 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 [American Association of University Professors], the ACLU [American Civil Liberties Union] or other groups in the lawsuit?
HK: 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?
HK: 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. 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?
HK: Despite a report from the UB [University of Buffalo] law school that we would lose — the Feinberg Law, on which the loyalty oath was based, had been upheld only a few years before — we 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, and do you believe courts today are still upholding it?
HK: 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.
Ed. note: A version of this article first appeared in the Winter/Spring 2014 edition of FDU Magazine.
