Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, by Marjorie Heins, 384 pages, $35.
We ought to be living in a golden age of public discourse, given how many people now have the opportunity to attend college. But we are not. Universities frequently maintain speech codes requiring "inclusion" and "civility," even if that means dumbing down discourse to an exchange of platitudes. Even worse, students have learned they can silence ideas they don't like by claiming that they are offended. If the speaker continues to express such ideas, punishment for "harassment" or "hate speech" often follows, chilling the speech of others who might challenge the prevailing orthodoxy.
Marjorie Heins' new book, Priests of Our Democracy, describes another period when debate was suppressed on American campuses. Heins chronicles the challenges to academic freedom in New York City's public education system in the 1940s and '50s, concentrating on the city government's efforts to root out Communist Party members and sympathizers. But as Heins explains in her introduction, the loyalty oaths and investigations of this period are not "ancient history." Current restrictions on campus speech reinforce the "habit of mind, long prominent in American politics, that seeks simple answers to complex problems, that shuts out nuanced or radical critique, and that demonizes dissent." By delving into the damage this "habit of mind" causes, Heins reminds us why freedom of expression, especially on campuses, is so vitally important.
Heins, a civil liberties lawyer, writer, and teacher, demonstrates that many of the academics caught up in the McCarthy-era purges were not, in fact, dedicated to the overthrow of the U.S. government. Some joined the Communist Party after the Depression because they were looking for a system that emphasized economic and social security, but they became disillusioned by Stalin's rule. And teachers with strongly leftist leanings frequently joined the New York Teachers Union, which worked toward raising teacher salaries and removing racist textbooks—and which Communist members eventually came to control. By telling the stories of these teachers, Heins brings to life the wrenching choice they faced when they became the targets of an investigation. They could lie under oath about a past association with the Communist Party or related organization, saving their job but risking prosecution for perjury; they could admit the association and "name names" of colleagues, thus saving themselves at the expense of others; or they could admit the association and stop there, thereby becoming unemployable.
Heins frames these individual histories with descriptions of the landmark legal cases that first allowed and ultimately banned the loyalty oaths that provided the excuse to investigate the beliefs of people who refused to sign. The legal discussion is a backdrop to her main story: the devastation of a vibrant New York City academic community that did not stand united against a government-run witch hunt to root out suspected Communists. Although the level of detail is more than the average reader might seek, Heins' clean prose and flowing narrative make this close look at the educational politics of more than half a century ago engaging.
Two Supreme Court decisions are central to this narrative. The first, Adler v. Board of Education, upheld New York's Feinberg Law, which allowed the removal of any educator in the public school system who engaged in "treasonable or seditious acts or utterances" or was a member of a group that supported the overthrow of the United States government. (The investigative committees required teachers who had left the party to prove that they were no longer members.) The Court upheld the law on the grounds that no public school teacher had a constitutional right to teach. If they did not want to submit to inquiries about their loyalty, "they are at liberty to retain their beliefs and associations and go elsewhere."
The second decision, 1967's Keyishian v. Board of Regents, banned loyalty investigations and affirmed that the First Amendment protects academic freedom after all. Writing for the majority, Justice William Brennan said the definitions of treasonable and seditious did not save the provision from being unconstitutionally vague because "the possible scope of 'seditious' utterances or acts has virtually no limit." The Feinberg Law covered the "public display" of any book "containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means." That observation, Heins writes, led to the first of Keyishian's "memorable rhetorical questions: 'Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy?'"
The question remains sadly relevant. In 2008, the Affirmative Action Office at Indiana University-Purdue University in Indianapolis found Keith John Sampson, a student-employee, guilty of racial harassment for merely reading a book, Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, on campus during his work breaks. After the Foundation for Individual Rights in Education (full disclosure: the foundation is my employer) intervened on Sampson's behalf and the case attracted extensive news coverage, the university reversed the finding against Sampson and cleared his school record.
Heins argues that Keyishian was a high-water mark rather than a sea change in First Amendment law in the academic setting. She points out that the Keyishian decision, while eloquent in its defense of academic freedom, never defined its scope. The concept is therefore vulnerable to narrowing interpretations, such as the argument that the right of academic freedom belongs to the university, not to the individual professor. Then there are the difficulties in harmonizing academic freedom with universities' overly broad or vague regulations against racial and sexual harassment, made even more complicated in the Internet age when a professor makes controversial remarks outside of the classroom.
Consider a controversy at the University of Denver that started in April 2011. The dean found a veteran professor, Arthur Gilbert, guilty of sexual harassment based on explicit comments he made in a course on international drug policy, which included a unit on "Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs." (Gilbert commented on the benefits of masturbation for prostate health, frequently used profanity in his lectures, showed sexually graphic videos, and once brought a vibrator to class.) The Office of Diversity and Equal Opportunity, which conducted the investigation, stated it was not qualified to judge if there were a pedagogical purpose to Gilbert's comments, and a faculty review committee decided that professor's comments were protected under academic freedom. Nevertheless, the Provost refused to reverse the sexual harassment finding, although he reduced the penalty from "sensitivity training" to a single "counseling session."
An ideological investigation can devastate a person's reputation as easily in 2013 as in 1953. But Priests of Our Democracy also shows that universities can stand up for free speech and academic freedom. The University of Chicago and Sarah Lawrence College both refused to cooperate with investigations of Communist infiltration at those institutions in the 1940s and '50s. Refusing to fire any member of his faculty for the professor's ideological sympathies, University of Chicago President Robert Hutchins explained that "free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities." Similarly, the president and trustees of Sarah Lawrence supported faculty members when the local American Legion demanded that they be fired because of their alleged beliefs. In the face of this resistance, the attacks against faculty members at these two schools stopped. It would have been interesting if Heins, in speculating about what might have happened if more universities had fought back, had analyzed a little more the factors that prompted these two schools to resist. She does make it clear that the leadership of their presidents was critical.
Heins makes a strong case that we must "defend the First Amendment principle of academic freedom as a limit on what government officials, including administrators of public institutions, can do to their teachers and students." She illustrates that the potential for abuse is still great, including a chapter on the suppression of academic speech after 9/11. In doing so, she demonstrates the importance of defending academic freedom against public intolerance of dissent in times of crisis—exactly the times when the country should draw on all its intellectual resources. The preservation of liberty requires Keyishian's affirmation of academic freedom and the importance of universities as a repository of unorthodox ideas.