The Roots of Academic Freedom


The Roots of Academic Freedom By Michael Steven Smith

Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti- Communist Purge
by Marjorie Heins

New York University Press, 2013, 384 pages, $35 hardback.

PRIESTS OF OUR Democracy: The Supreme Court, Academic Freedom, and the Anti- Communist Purge is a smart, well-crafted insightful book by an especially qualified author. Marjorie Heins is an unrepentant six- ties radical out of SDS who went on to get a Harvard Law School degree and became a litigator, a law professor, an historian and a constitutional scholar.

Academic freedom was not gained along with the Bill of Rights just after the American Revolution, as most people think. It was not initially protected by the First Amendment, took a beating in the radical 1930s and during the Cold War, made some big gains in the sixties under the Warren Supreme Court, but still remains a fragile freedom in the wake of 9/11.

The kernel of Heins’ book tells the story of the investigations and purges of Communist Party members and sympathiz- ers who taught in the public high schools and colleges in New York City in the thir- ties and again in the ’50s and ’60s, and the Supreme Court decisions that resulted. It weaves together beautifully told personal stories with legal and political history. But it starts in the 1890s at the University of Wisconsin where I went to college and law school, and finishes with a chapter on post 9/11 developments.

I grew up in the fifties in Fox Point, Wisconsin, a little Republican village equi- distant from Joe McCarthy’s home town Appleton, and Madison where the University of Wisconsin was founded. Madison was an island of freedom in the ’50s and ’60s com- pared to Fox Point, or for that matter New York City.

In 1957 when McCarthyism had spread fear across the nation, my high school history teacher invited me and my friend Sue over to the room he rented in a local home. He made us promise not to tell anybody what he was about to show us. Then he reached under his bed and pulled out …. a Pete Seeger album.

Meanwhile at that time the headquarters of the “Joe Must Go” campaign was located at the University of Wisconsin, even as some 380 New York City teachers had been fired from their positions.

Origins of a Principle

University of Wisconsin Professor Richard Ely, a Christian socialist and social reformer, won in 1894 the first great victory for academic freedom over corporate influ- enced politicians who tried to silence him, falsely accusing him of pressuring a local printer to use union labor exclusively.

University President Benjamin Andrews came to Ely’s defense, telling the Board of Regents that firing Ely would be “a great blow at freedom of university teaching in general and at the development of political economy in particular.” The Regents issued a report which ended in words so inspiring that a plaque quoting them is displayed on the main liberal arts building at the top of the highest hill on campus, proclaiming:

“Whatever may be the limitations which trammel inquiry elsewhere we believe that the great State University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth may be found.”

This support had practical consequences. The University went on to employ one of Ely’s proteges, Edward Ross, who had been fired from Stanford by Leland Stanford’s widow. The good woman, with all the prejudices of her class, resented Ross’ support of public ownership of utilities and immigrant labor.

Mrs. Stanford wrote the university pres- ident David Starr Johnson that Ross “asso- ciated himself with political demagogues, excited their evil passions, and played into the hands of the lowest and vilest elements of socialism,” and got him fired.

Ross was then hired at Wisconsin, where he quickly affronted “certain financiers and capitalists” on the Board of Regents, invit- ing Emma Goldman to lecture to his class and escorting her around the campus. “His research and writing,” Heins writes, “provid- ed the basis for later laws on factory safety, child labor, maximum working hours, and minimum wage.”

He exemplified the “Wisconsin idea” of what she describes as “an activist govern- ment staffed with a merit-based civil service and relying on many expert commissions.” This tradition of hiring radical professors and standing for activist involvement carried on at Wisconsin, which had socialist pro- fessors in the ’50s, ’60s and ’70s including the stellar Harvey Goldberg and William Appleman Williams, and was a seedbed for the new left scholarship.

The Battles of New York

The scene in New York City developed quite differently. Home to the largest num- ber of CPers in the country, the city became the focus of the most ferocious repression of teachers from the late thirties through the mid-’60s. Many of them had jobs in New York’s high schools and City Universities.

They numbered some of the most mil- itant union builders, brilliant liberal arts teachers, anti-racists, and student advocates. Their political and legal history constitutes the central part of Heins’ study.

The wounding of the CP took place both before and after World War II. The radical- ization of the ’30s led up to the 1940-41 activities of the destructive Rapp-Coudert Committee of the New York State legisla- ture, which was charged with looking into “subversion” in public colleges and high schools. It held hearings in New York City asking suspected Communists about their politics and their friends and comrades.

To deny membership and to be caught meant being fired. To not “name names” meant so also, as did refusal to testify on Fifth Amendment grounds of self-incrim- ination. Persons were adjudged to have engaged in “insubordination” “conduct unbe- coming of a teacher” and given the hook.

Freedom of association and the right to speak one’s thoughts were not respected. To be a Communist was to automatically be one who “indoctrinated” students and not suitable for employment, although there was no evidence ever admitted to show this to be the case.

The beloved Annette Rubinstein lost her principal’s job in a New York City high school at that time and never regained it. She went on to write several excellent literary histories among other books, and became a leader and teacher at The New York Marxist School/Brecht Forum, where the library is named after her.

Morris Schappes, the founder of the left wing Jewish Currents magazine, also got the boot as did the prolific labor and Black history scholar Phil Foner. Schappes never taught again but Foner finally secured a job at Lincoln University in 1967. Julius Nash, the father of the late wonderful Tamiment Library head Michael Nash, also fell victim to the Rapp-Coudert witchhunters and wound up teaching at yeshivas.

It didn’t help that the CP enthusiastically supported the Moscow purge trials where the old Bolsheviks were framed-up and mur- dered, or that they abandoned their Popular Front strategy of appealing to the capitalists and supporting their parties in the hopes that the parties would go easy on the Soviet Union.

In 1939 the Soviet Union signed a non-aggression pact with the Nazis and photographs of their Foreign Minister Ribbentrop and Stalin toasting Hitler’s health on his birthday were plastered on the front pages of the New York press. Heins reports that after this flip-flop half the members of the CP in New York quit.

The Rapp-Coudert witch hunt then com- menced, supported by both the right wing and many liberals. Its investigation, Heins writes, “made it dangerous for scholars of history, literature, sociology, science, or religion to write or teach about Marxism, socialism, the Soviet Union, revolution, and indeed social change of any kind.”

World War Two ended in 1945, and the Cold War started just a year later with Winston Churchill’s infamous speech in Fulton, Missouri that “the totalitarian Soviet Union” imperiled “Christian civilization.” The CP and leftists didn’t get much respite. Legislative investigations and purges com- menced nationwide.

The red hunt was on. Some real bad law was made in 1952 by the U.S. Supreme Court when it upheld New York State’s witch hunting Feinberg Law. It found in the crucial Adler case that teachers don’t have a right to their jobs and that authorities have a right to investigate their beliefs, lest they corrupt the young.

The great Supreme Court Justice William O. Douglas wrote a ringing far-seeing dis- sent in Adler, stating that the Feinberg Law “proceeds on a principle repugnant to our society — guilt by association” and that it “turns the school system into a spying proj- ect” with the ears of students, parents and administrators “cocked for tell-tale signs of disloyalty.”

He explained that the law “would raise havoc with academic freedom,” and predict- ed that “a pall is cast over the classrooms.” Heins observed that “Fifteen years later, in l967, Justice William Brennan borrowed Douglas’s image of a pall hovering over edu- cation, in a case that overturned Adler and invalidated the Feinberg Law.”

Brennan did so in the fundamental Keyshian case, which is the law today. It establishes the principle that we call aca- demic freedom, the legal/political concept of the right of a teacher to hold and express political views, especially outside the class- room, without punishment from a private or public institution. It also means the right of university faculties to regulate their own affairs without government interference.

Heins writes that Keyshian is a wholesale rejection of “the idea that restriction on expression, ideas, and political associations are permissible under the First Amendment as conditions of public employment. And because the Feinberg Law targeted teachers, Brennan had particular words to say about education. ‘Our Nation is deeply commit- ted to safeguarding academic freedom,’ he wrote, ‘which is of transcendent value to all of us and not merely to the teachers con- cerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall or orthodoxy over the classroom.’”

The Price of the Witchhunt

Heins takes as her title viewing teach- ers as “priests of our democracy” (a term coined by Supreme Court Felix Frankfurter). Driving the leftists out of their teaching professions, she rightly observes, exacted
a price in terms of social progress that we are still paying and has fortified a political system that allows for only the narrowest of discourse.

“Socialism,” she laments, “remains a curse word in our vocabulary, and in the early 21st century, the United States still lacked a consensus on progressive values” that other countries take for granted.

“There are no green pastures,” the great movement attorney Bill Kunstler used to say. “Every generation must fight for its own freedoms.”

We see this fight as just now beginning with the Occupy Wall Street generation.  A recent Pew poll marked 49% of young persons under the age of 30 registering a positive reaction to the word “socialism.” Perhaps they don’t know exactly what it means. But they know that what they have now they don’t like, and they are looking for alternatives.

In this struggle we cannot count on the Supreme Court. Under the guise of “the war on terrorism,” just as surely as under “the war on communism,” today’s Roberts court cannot be relied on to protect our consti- tutional rights and those in the movement who use them.

A recent 2010 case holding that an advocacy group was guilty of “materially supporting” terrorism because if gave free legal advice to a group looking to encour- age peace in Kurdistan is one example. The sentencing of attorney Lynne Stewart to ten years in prison for issuing a press release on behalf of her client is another.

Heins shows how the liberals, academia and the courts folded in the face of the red hunt. But the Communist Party’s perfidy, its reliance on what it thought was “socialism” in the Soviet Union, and its betrayals cer- tainly eased the way of red hunters. We have no such formation now. The table has been reset, and Marjorie Heins’ excellent book has a place at the table. §


Michael Steven Smith is an attorney in New York City. He is the co-host of the radio show Law and Disorder and is on the Board of The Center for Constitutional Rights. He has recently co-edited the book Imagine: Living in a Socialist USA to be published in September, 2013.

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