ACADEMIC FREEDOM IN THE LATE 1940s AND 1950s.

Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (New York: New York University Press, 2013) (The book's title comes from Justice Frankfurter opinion in Wieman v. Updegraff: "'To regard teachers--in our entire educational system, from the primary grades to the university--as the priest 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.'--Justice Felix Frankfurter, Wieman v. Updegraff." Id. at vii. Unfortunately, teachers have fallen from the pedestal. In these increasingly anti-democratic, conformist, intolerant, and uncritical times, few would think of teachers as priest of democracy. Even in today's law schools, law professor's focus is increasingly on training students jobs (law firms want new associates to be "practice ready"), and not in teaching students to think critically and to act in the pursuit of justice. And recent attacks on legal education and law schools focuses on the instrumental value of a legal education, suggesting that it is not worth the money. "Well before the SISS arrived in Manhattan in 1952, there had been years of debate all over America--in courts, in educational institutions, and in the press--about whether the First Amendment principle of free speech protected suspected communists and, more specifically, about whether the concept of academic freedom barred political inquisitions against teachers and professors..." The Supreme Court confronted the question in a case that challenged New York State's 1949 Feinberg Law, which required detailed procedures for investigating the loyalty of every public school teacher and ousting anyone who engaged in 'treasonable or seditious acts or utterance' or joined an organization that advocated the overthrow of the government by 'force, violence, or any unlawful means.' It was a typical Cold War-era loyalty law; hence, Adler v. Board of Education, the Supreme Court 1952 decision upholding it had nationwide repercussions." Id. at 2-3. "Fifteen years later, in 1967. Justice William Brennan borrowed Douglas's image of a pall hovering over education, in a case that overturned Adler and invalidated the Feinberg  law." Id. at 3. "Some Supreme Court decisions over the previous decade had cautiously chipped away at loyalty programs, but Justice Brennan, with in Keyishan [v. Board of Regents], rejected wholesale the idea that restrictions on expression, ideas, and political associations are permissible under the First Amendment as conditions of public employment. And because the Feinberg Law targeted teachers, Brennan had particular words to say about education. 'Our Nation is deeply committed to safeguarding academic freedom,' he wrote, '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.'" Id. at 5. Sadly, I don't think Brennan could muster a majority from the current membership of the Supreme Court. The post-9/11 American looks more and more like an updated version of the Anti-Communist America of the late 1940s and the 1950s. "Liberty depends on the understanding and support of the public--when it dies in 'the hearts of men and women,' as Judge Learned Hand memorably said, 'no constitution, no law, no court can save it.' But courts also have a role to play, especially in times of public intolerance." "As at other moments in our history, in the 21st century it is sometimes argued that the need for political loyalty trumps free speech, including--or especially--speech by teachers. Meanwhile, some courts and commentators have sought to ignore, distinguish, or interpret out of existence the academic-freedom principles announced by Justice Brennan in Keyishian. A primary lesson of the history recounted in this book is that the American political system is all too vulnerable to political repression and to demonizing the dissenter, both on campus and off. I hope the story told here helps make the case for a renewed appreciation of academic freedom and of the role played by teachers as priests of our democracy. Just as the anti-communist panic of the Cold War triggered a political, and eventually a judicial, recognition of academic freedom, so in our post-9/11 world teachers, students, universities, judges, and the whole body politics should adhere to the promise of Keyishian." Id. at 282-283.).