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.

Heims 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.