by Marjorie Heins, director of the Free Expression Policy Project, adjunct professor at New York University, and author of Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. Her latest book is Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.
Academic freedom is not as obvious a concept nowadays as it seemed when the Supreme Court first incorporated it into the First Amendment in response to McCarthy era investigations and purges of left-wing teachers and professors. Why, after all, should academics have privileges not given to workers in other jobs? Surely, academic freedom would not protect the instructor who is incompetent -- who denies the Holocaust in a history class, for example, or preaches creationism instead of teaching evolution in Biology 101.
The idea of academic freedom emerged more than a century ago, when professors who supported union organizing and other social causes were losing their jobs because corporate-dominated boards of trustees did not like their politics. One of the best-publicized firings was of the young professor Scott Nearing from the University of Pennsylvania. In response, prominent scholars got together and founded the American Association of University Professors (the AAUP). The AAUP’s 1915 “Declaration of Principles on Academic Freedom and Academic Tenure” argued that universities are different from businesses and professors are therefore different from other employees. The freedom they need in their teaching, research, and “extramural” speech (such as Scott Nearing’s advocacy for socialism and against child labor) are not matters of personal privilege but of broad public interest.
Or, as Justice Felix Frankfurter put it in a 1952 case, teachers are “the priests of our democracy” because it is their special task “to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” It’s this notion that education is not just about rote learning but about “habits of open-mindedness and critical inquiry” that makes teachers essential to democracy.
But lofty ideals are vulnerable to political realities and, consumed by the Cold War tensions of the 1950s, most American schools and universities decided that academic freedom should not protect teachers suspected of communist sympathies unless they cooperated with loyalty investigations by renouncing their past political errors and “naming names” of others they had known in the radical movements of the 1930s and ‘40s.
The Supreme Court at first was equally swept up in exaggerated Cold War fears of domestic subversion. In the 1952 case of Adler v. Board of Education -- an unsuccessful challenge to New York State’s “Feinberg Law,” which required loyalty investigations of all public school employees -- Justice Sherman Minton casually dismissed the teachers’ First Amendment arguments. Teachers work “in a sensitive area in a schoolroom,” where they shape young minds, Minton wrote. “One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty.” According to Minton (as paraphrased by a subsequent commentary on the decision): “if he doesn’t like it here, let him go back where he came from.”
But William O. Douglas wrote an impassioned dissent in Adler; it was the first mention of academic freedom in a Supreme Court opinion. The Feinberg Law, Douglas said, would “raise havoc with academic freedom.” The school system would be turned “into a spying project” where “the principals become detectives; the students, the parents, the community become informers. … A pall is cast over the classrooms.”
Gradually, both the political landscape and the makeup of the Supreme Court changed. In the 1967 case of Keyishian v. Board of Regents, Justice William Brennan pulled together a 5-4 majority to overturn Adler and strike down the Feinberg Law on both First Amendment overbreadth and freedom-of-association grounds. Academic freedom, Brennan wrote, is “of transcendent value to all of us and not merely the teachers concerned”; therefore, he said -- borrowing Douglas’s metaphor -- it is a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
My book, Priests of Our Democracy, traces the history of academic freedom in the courts, on the campuses, and in the streets. It chronicles how the lives and careers of some of the most dedicated and talented teachers and professors were upended by administrative purges and sensationalized legislative investigations. Ultimately, many universities and school boards acknowledged the injustices of the Red hunt years; in New York City, some of those who had been fired were given reinstatement -- primarily in the form of pensions, or payments to the estates of those who had died.
Priests takes the story up to the present. Not only are academics today facing a variety of assaults -- on Middle East studies, for example -- but the Supreme Court has retreated dramatically from Keyishian. In the 2006 case of Garcetti v. Ceballos, the Court continued its project of narrowing public employee free-speech rights by rejecting the First Amendment claim of a prosecutor who had been punished for blowing the whistle on fraudulent search warrant affidavits; Justice Anthony Kennedy wrote for the majority: “When 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.”
In response to an alarmed dissent by David Souter pointing out that professors’ scholarship and teaching are part of their “official duties,” Kennedy added a caveat in Garcetti suggesting that just maybe -- as if the question were undecided -- “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.” As so often happens, the wheel had turned, and the Supreme Court is now much less interested in the rights of unconventional or activist professors.
Ultimately, the courts can only set the parameters -- and in any event, the First Amendment only protects public employees, not private ones, from retribution by their bosses. So it is up to the faculties themselves, as well as their students and their communities, to defend the stake that everyone has in letting those “priests of our democracy” do the job of education.