For the Record: Academic Freedom and National Security

Let me take you back, if I might, to May 5 of last year. The day was memorable for me as the thirtieth birthday of a son and the fourth birthday of a grandson neither of which event would remotely justify my inviting your attention. The date was also important for a very different reason that is central to our gathering today. On May 5, a Senate subcommittee released long-sealed transcripts of hearings that Senator Joseph McCarthy had conducted behind closed doors a half century earlier. The release offered a sobering reminder of what attorney Joseph Welch had rightly termed the reckless cruelty of Wisconsin's junior senator. The focus of those secret hearings had been a group of witnesses, many of them college professors, whom the subcommittee eventually decided not to summon in public. One of those who was slated to be spared such public humiliation actually took his own life before he learned of his reprieve.

The opening of these files evoked diverse reactions on Capitol Hill. Senator Carl Levin expressed his confidence that such excesses would not recur. There's a greater awareness, he explained, of McCarthyism and what tactics can be used by people who are trying to quiet dissenters. And, he added, there's greater resistance against those who would try to still voices that they disagree with.

Standing nearby was Levin's colleague, Russ Feingold, whom we might recall cast the only Senate vote against the USA Patriot Act. He offered a less hopeful view. What I'm hearing from constituents, he insisted, suggests a climate of fear toward our government that is unprecedented, at least in my memory. And, lest we devalue his perspective, Feingold added, "Don't forget that I am the junior senator from Wisconsin."

The central question Id like to pose to you this afternoon is which view Levin's optimistic assessment or Feingold's bleaker prognosis better reflects the current condition of, and prospects for, academic and intellectual freedom in times of stress. Senator Levin, by the way, knows whereof he speaks. During his undergraduate years in Ann Arbor, the University of Michigan carried out one of the most egregious purges of tenured faculty, summarily dismissing three professors who were either suspected of disloyalty because of their political affiliations, or simply refused publicly to accuse colleagues of suspect associations. For the past decade, the university has sponsored a lecture series honoring the three victims of the anti-Communist hysteria. In all, as historian Ellen Schrecker has so ably chronicled, nearly seventy tenured or tenure-track professors were dismissed during the McCarthy era for suspected political activity or, more often, for refusing to finger colleagues whose affiliations were under scrutiny.

Let me suggest a general response. Even if we tend more toward the Levin view, we ought at least within the AAUP to proceed as though Feingold were closer to the truth. Now to the alternatives: can we be confident, on one hand, that no such a travesty could happen again? Or is Senator Feingold justifiably concerned that McCarthyism might return especially if there were to be another attack of the magnitude of September 11?

Nearly three years after that tragic day, I'd say the early returns tend a bit more to support the Levin view. The AAUP has been far more vigorous, more eloquent, and more vigilant in the past two and a half years than were our predecessors a half century ago. Such comparisons are, of course, never easy. In fairness to those who led the Association in the 1950s, several differences need be noted. For one, they were not completely silent, even though what they did and said back then could well be characterized and I think not unfairly as too little and too late.

Second, it was more difficult far riskier, in fact to speak out publicly against the excesses of McCarthyism than it is today to oppose security measures that seem to us unwarranted and dangerous that much I know from having grown up in Cambridge and actually having covered McCarthy hearings and criminal trials as a college newspaper photographer. Moreover, we should recognize that we today garner much broader and stronger support beyond the academic world than did the AAUP of the 1950s. Back then, People for the American Way and other congenial groups did not even exist. Those that did the American Civil Liberties Union, for example were similarly muted. So in these respects, the old days not only were not good, but they were also bad in ways we can hardly imagine today.

Even so, when the record of this era is written, I have no doubt that major credit will be given to the AAUP and to the leadership of the Associations general secretary, Mary Burgan, and its president, Jane Buck, for making certain that the academic voice was heard clearly, forcefully, and promptly. They promptly created, and totally supported, a Special Committee on Academic Freedom and National Security in a Time of Crisis. When Mary asked me to chair this group, we recognized at once that no McCarthy-era precedent existed from which we might adapt our agenda. Time and again in the post September 11 era, this Association and its general secretary have stepped up and conveyed their concerns with clarity and conviction, early enough to make a genuine difference. So if Senator Levin is closer to the mark, as I firmly believe he is, the AAUP must be recognized as a major factor in that difference.

In fact, Senator Levin almost said as much, without naming names. Recall that last May he cited not only greater awareness of the savage effects of McCarthyism but also greater resistance against those who would try to still voices that they disagree with. That comment seemed to me a pointed recognition by a close observer of the presence and effectiveness today of watchdog groups, of which the AAUP is indisputably one.

Though the terrain is familiar to many of you, let me review briefly some of the evidence that supports a slightly more sanguine view of current conditions. It reflects a national response to unwelcome views from the university campus strikingly different from the hysteria of the 1950s.

The weeks that followed the attack on the World Trade Center and the Pentagon could well have brought out the worst in university administrators, governing boards, alumni, and legislatures many of us feared that's just what would happen, though mercifully it did not. On the afternoon of September 11, University of New Mexico history professor Richard Berthold joked to his first-year survey class that anyone who can blow up the Pentagon gets my vote. Despite strong pressure from some legislators and irate citizens to dismiss Berthold on the spot, the university suspended him with pay and began a careful but quiet investigation. The outcome, several months later, was an official reprimand. He was also removed from teaching first-year courses a step that some might not view as a sanction.

A week after the attacks, Orange Coast Community College professor Kenneth Hearlson was placed on leave for comments made during a September 18 introductory political science class at the California institution. Several Muslim students claimed that Hearlson had pointed at them, accusing them of being Nazis and terrorists, because they drove two planes into the World Trade Center. A careful internal inquiry concluded that Hearlson had indeed been less than fully sensitive to his Muslim students, though the statements quoted by his critics had not been uttered. He was reinstated for the spring semester, with a letter of reprimand in his file the only formal sanction.

Several weeks after September 11, a teach-in occurred at the City College of New York. Several faculty members sharply criticized U.S. foreign policy, specifically blaming American colonialism for the attacks. Response in and outside the CUNY system was immediate and intense. The chancellor took the faculty critics to task, publicly faulting those who had made lame excuses for the terrorists. One trustee labeled the speakers conduct seditious, and another declared that the board should censure the aberrant professors.

Shortly before the board meeting at which such action might have occurred, CUNY's vice chair, Benno Schmidt, educated his colleagues on some basic principles of free speech and academic freedom drawn from his strong First Amendment academic background and his years as Yale University's president. The freedom of thought to challenge and to speak ones mind, Schmidt reminded the other trustees, is the matrix, the indispensable condition of any university worthy of the name. There seems to me little doubt where Schmidt who now happily chairs the CUNY board got those principles, even though no AAUP citation accompanied his declaration. Suffice it to say the prospect of sanctions quickly vanished.

Strikingly similar events were to take place at Columbia University a year and a half later, with an even more reassuring outcome. Nicholas De Genova, an assistant professor of anthropology and Latino studies, took part in a teach-in at the height of the war in Iraq. Among several provocative comments, De Genova said he wished for a million Mogadishu's recalling the tragic ambush of U.S. troops in Somalia, graphically portrayed in the film Black Hawk Down. This challenge was not the professors first; the previous spring, he had expressed deep hostility toward Israel at a campus rally.

Although word of De Genova's comments did not become public for several days, they evoked indignation the moment they reached the media. More than a hundred members of the U.S. House of Representatives called for his resignation. The leader of the petition drive, Representative J. D. Hayworth, insisted the issue was not whether De Genova has the right to make idiotic comments . . . but whether he has the right to a teaching job at Columbia University after making such comments.

That issue soon came before another highly respected First Amendment expert, Columbia's new president, Lee Bollinger. He declared that he was personally shocked by De Genova's remarks, noting that this one has crossed the line, and I really feel the need to say something. Later that spring, Bollinger declared that, however reprehensible, such an outburst did not forfeit a faculty members position, and that under the principle of academic freedom, it would be inappropriate to take disciplinary action.

While tempers were cooling slightly on Morningside Heights, the De Genova incident became fodder for Fox News's The O'Reilly Factor. Lee Bollinger was invited to appear and defend his stance, but he understandably declined. I agreed to appear in his stead and (as former chair of the AAUP's Committee A on Academic Freedom and Tenure) to explain the role of academic freedom. After a few opening parries, and a repeated charge that Columbia's president was hiding under his desk, O'Reilly concluded with this quite extraordinary statement: Ill tell you what I would do if I were Bollinger. . . . I wouldn't fire this guy; I wouldn't fire this De Genova. Okay? Because I agree with you. You've got to tolerate this kind of speech. O'Reilly offered, instead, his preferred solution: I'd shun him. I wouldn't invite him to any faculty things.

After a closing word of appreciation from the normally contentious host Thank you very much for your point of view, very provocative we went to a commercial break. I wish I could report that O'Reilly confessed off the air to having perused the AAUP's policies. That I cannot do, though for some reason, he managed to get it right. Imagine, if you will, the likelihood that columnists Walter Winchell or Westbrook Pegler would have made such a statement half a century ago.

The fact that this exchange took place on March 31, 2003, during the tensest period of combat in Iraq, gives greater force to O'Reillys apparently extemporaneous, though widely noted, concession. It seems inconceivable that, a half century earlier, Winchell or Pegler could have made a similarly tolerant statement about a highly visible academic target of Senator McCarthy's scrutiny. For this reason more than any other recent evidence, the Levin view of the current condition of academic freedom may be closer to the mark.

My optimism was tested, I must confess, by two events that occurred in early February of this year. A federal grand jury in Des Moines issued subpoenas to Drake University, demanding detailed information about an antiwar conference held on campus in late 2003, and about the events sponsor, the local student chapter of the National Lawyers Guild. Included among the records subpoenaed were lists of all those attending the conference and reports that the student group had filed with the university during the past several years.

The apparent basis for such requests was the belief that the conference had spawned a physical protest at a nearby military base, which had piqued the grand jurys interest. News of the subpoenas brought immediate expressions of concern from civil libertarians and academic groups. Our AAUP Special Committee on Academic Freedom and National Security in a Time of Crisis was one of the first to protest acting, I may say, with unaccustomed alacrity. We were joined by others. Some critics noted that the nation had not seen such intrusive inquiries for nearly a half century, warning they could presage a return to McCarthyism. Drakes president took a firm stance in opposition, while the Lawyers Guild filed a motion to quash the subpoenas.

Within a few days, an obviously embarrassed U.S. attorney withdrew the demands. His initial explanation that his office was concerned about the catalyst for a physical trespass at the military base and did not prosecute persons peacefully and lawfully engaged in rallies which are conducted under the protection of the First Amendment satisfied no one. Yet the very fact that a federal prosecutor would feel compelled to offer such a disclaimer suggests the degree to which the landscape has indeed changed during the past half century.

About the same time, army intelligence agents aggressively questioned students and staff members at the University of Texas at Austin about a conference on Islam held there. Although no subpoenas were issued, concerns arose paralleling those in Iowa. After much embarrassing publicity, the army officially confessed error, acknowledging in late March that the agents had exceeded their authority in conducting such an inquiry.

Lest I be thought naive, uninformed, or both, I should temper my optimism by noting that there have been and remain many causes for concern. Our special committees report addresses such concerns, and the AAUP continues to focus attention on them. Whether it is the still-unresolved dismissal of Professor Sami Al-Arian at the University of South Florida; the U.S. Treasury Departments bizarre application of a trading with the enemy embargo to the editing of scientific journals; the dramatic decline recently reported in the number of foreign graduate students applying to our most prestigious programs, deterred by inexplicable visa delays; the intrusive limits on research with biohazardous materials; or the ominous politicization of academic science these and other recent developments suggest that all is not well.

Yet even so mixed a picture seems to me far better than what, on the morning of September 12, 2001, I would have feared might emerge from the inevitable pressures following the terrorist attacks. That there has been any good news seems to me reassuring. And the fact that academic freedom has remained as resilient at its core as it has suggests that things could have been much worse.

If you accept my premise that Senator Levin's view is closer to the mark than Senator Feingold's, let me offer one other explanation for the stark contrast between current conditions and those of the 1950s. Happily, it is also a factor for which the AAUP deserves major credit, even if such credit is not always given. The state of the law that defines and protects academic freedom has improved so markedly in the past half century that, without considering any other elements in the equation, we would be disposed to doubt that McCarthyism is likely to recur in anything like its original form.

At the time of the faculty purges in the late 1940s and early 1950s, there really were no legal precedents that protected either academic freedom or the speech of public employees. The Scopes case had been a disaster for teachers at all levels. Even when the Supreme Court ruled that states could not bar private schools from teaching non-English languages, its judgment rested on general due process principles rather than anything resembling academic freedom. Thus if Senator McCarthy had asked for guidance on the state of the law as he embarked on his poisonous quest in 1950, the resulting advice would have given the senator virtually carte blanche.

Fifty years later, the situation is profoundly different. Barely a decade after the McCarthy era began, and less than a year after it ended, the legal landscape began to change dramatically. Since the 1960s, a beleaguered or embattled professor has been able to seek refuge or support from many legal doctrines and principles. The change in this branch of the law, as in many others, has been momentous. It is worth tracing several strands of this fabric in our quest to understand how different things are from what they were in the McCarthy era.

The first mention of academic freedom in Supreme Court jurisprudence, notes legal scholar William Van Alstyne, appeared in a dissent by Justices Hugo Black and William Douglas in 1952. By 1957, a majority was ready to hold that a state attorney general had not properly sought to compel testimony by a visiting professor about the content of his lectures. It was in this case that Justice Felix Frankfurter expanded upon his earlier recognition of academic freedom, speaking eloquently of the spirit of free inquiry and warning of the grave harm resulting from government intrusion into the intellectual life of a university. Significantly, this momentous ruling coincided very closely in time with the senate's censure of a now politically crippled (and terminally ill) Senator Joseph McCarthy.

Soon after it recognized academic freedom as a protected constitutional interest, the Court began to strike down disclaimer-type loyalty oaths. These victories came mainly in cases brought by university professors, relying first on due process but shifting later to freedom of expression. In 1967, the justices finally removed any lingering doubt about the power of states to compel such a disavowal of belief or affiliation, striking down on First Amendment grounds both New York's and Maryland's loyalty oaths in faculty-initiated cases. The role of the AAUP in this litigation is impressive and pivotal, and deserves a volume of its own. No such case went to the high Court without an AAUP amicus brief. Often, the Associations involvement and support both moral and financial came at a much earlier stage.

The central role of academic freedom was most forcefully acknowledged in Justice William Brennan's opinion for the Court in the New York case: Academic freedom 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. Thereafter, no serious claim could ever again be made that states may require any person least of all a university professor to disclaim the very political affiliations and activities that had been at the heart of the McCarthy subcommittees intrusive questions.

While one cannot easily assess the strength of any one element in so complex a mixture, there seems no doubt that the changing character of constitutional law is pivotal and that such changes would never have occurred without the AAUP, the Academic Freedom Fund, and a host of engaged and energetic colleagues. It is not only loyalty oaths that no longer pose the threat to academic freedom they once did. We are also relatively free from other once-dreaded intrusions such as legislative inquiries into political beliefs and associations, bans on controversial speakers, campus speech codes, and selective regulation of student organizations.

In closing, let me return to the issue with which we began: was Senator Levin justified in his premise that McCarthyism remains a grim specter of the past? Or was Senator Feingold, sole Senate opponent of the Patriot Act, on sounder ground in offering a darker prognosis? Most of our experience in the more than two years since September 11 suggests a slight preference for the former, more benign view especially because those who might have wished to blame the academy and the professoriate for some of the worlds current ills have not been reticent in these tense times.

So as we gather for this annual meeting, I would urge that we not only take special note of the progress for which the AAUP is unmistakably responsible, but that we also express a special debt to Mary Burgan for being our general secretary during the most demanding of times, and for having been more than equal to the tasks and challenges that she could hardly have anticipated when we asked her to lead us into a new millennium. She has done so forcefully, sensitively, with perspective and good humor, and our Association is stronger today than it has ever been before. And as we look ahead to a new and demanding era, I urge that we accept the very wise counsel of our eloquent new general secretary, Roger Bowen, who rightly insists that even if we incline to the Levin view, as I do, we should act as though Senator Feingold knows better.

(posted 12/04)