Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge by Marjorie Heins. New York: New York University Press, 2013.
The title of Marjorie Heins’s engrossing book comes from Supreme Court justice Felix Frankfurter’s concurring opinion in a 1952 loyalty oath case. He wrote, “To regard teachers—in our entire educational system, from the primary grades to the university —as the priests of our democracy is not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” Although these words were invoked repeatedly by those contesting the anti-Communist inquisitions of the 1950s and ’60s, they had little immediate effect. Teachers were a particular target of the local and national politicians who insisted, in the name of national security (and the protection of vulnerable young minds), that subversive elements be cleansed from schools and colleges. In New York City alone, more than a thousand teachers were questioned during the 1950s; some two hundred resigned rather than continue an interrogation that not only asked about their own Communist Party membership but also required that they prove their integrity by naming others; thirty-three were fired.
Focusing on the New York story, but placing it in the larger national context, Heins explores how politics and jurisprudence were intertwined in Cold War reasoning that placed national security above considerations of First Amendment rights and the more elusive principle of academic freedom. The narrative is framed by two Supreme Court cases. The first, Adler v. Board of Education (1952), upheld New York State’s 1949 Feinberg Law, which called for the firing of public school teachers “who engaged in ‘treasonable or seditious acts or utterances,’ or joined an organization that advocated the overthrow of the government by ‘force, violence or any unlawful means.’” The second, Keyishian v. Board of Regents (1967), struck down that law as a violation of the First Amendment. Writing for the majority in Keyishian, Justice William Brennan singled out education as a special concern: “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.”
A civil liberties lawyer, Heins deftly details not only the arguments of the court but also the precedents set by both majority and dissenting opinions. She shows how the political climate impinged on (but didn’t necessarily determine) court decisions, and how the particular outlooks and experiences of individual judges mattered as well. But this isn’t just a legal history. It is also a social history. We learn a great deal about the protagonists in the lawsuits as well as the investigators and their targets, teachers pressured into informing and the principled few who refused to comply. Heins has mined the archives and fills her pages with many gripping moments, among them the exchange between high school science teacher Maurice Kurzman and Saul Moskoff, the corporation counsel charged with rooting out subversion for the New York City Board of Education. Kurzman found it no accident that most of the teachers interrogated were Jewish, since “in all great periods of oppression it is the Jewish people who have been persecuted by these inquisitions.” To Moskoff’s reply that he doubted Kurzman’s Jewishness, presumably because he was refusing to cooperate with the investigation by naming names, Kurzman advised the counselor to study the Talmud and more recent history: “There were some Jewish policemen in the Warsaw ghetto who sought to save themselves from the Nazis by acting as informers and betraying their fellow countrymen. They found out too late that they, too, were sucked into the abyss.” We learn later that Moskoff never faced the abyss and instead was rewarded with a judgeship for his efforts.
The last two chapters of the book take us to the present and to the return of concerns about national security after the attacks of September 11, 2001. Although some of those fired in the 1950s achieved a measure of compensation for the loss of their positions, and although some institutions, notably the City University of New York, apologized for the treatment of their former employees, there has been no lasting affirmation of the importance of individual teachers’ right to academic freedom as the AAUP defines it. In fact, there has been a tendency (antedating 2001) to affirm institutional rights (of school boards and university administrations) that trump individual faculty rights as exercises of academic freedom: “By the first decade of the twenty-first century, U.S. courts had closed the door to most academic-freedom claims by teachers and students below college level and returned the neartotal discretion to school boards and administrators that they had enjoyed before the 1960s.” And at the university level, Heins writes, “the status of First Amendment academic freedom for professors’ research, writing, and teaching was increasingly shaky”—the more so because of a tendency by the courts to attribute rights to universities (defined as communities of scholars) to hire and fire employees free from state interference. In addition, antiterrorism laws again raise the question of national security and the presumption that First Amendment rights in general and academic freedom in particular are secondary concerns.
Heins, of course, wants to contest that presumption, arguing instead that the decision in Keyishian ought to be our guide to the theory and practice of academic freedom. Her book shows us that we flout those principles at our peril. Keyishian repudiated the inquisitions of the 1950s; it ought to stand as the ground on which we—and the courts and educational leaders—defend academic freedom in the twenty-first century. This book shows us, with intimate historical details and compelling arguments, why that ought to be so.
Joan W. Scott is Harold F. Linder Professor in the School of Social Science at the Institute for Advanced Study. She was chair of the AAUP’s Committee A on Academic Freedom and Tenure from 1999 to 2005 and has recently rejoined the committee. Her latest book is The Fantasy of Feminist History.