Keyishian v. Board of Regents of the University of the State of New York (1967) arose at a time when it was common for public employers to require their employees, including educators, to subscribe to loyalty oaths. These oaths, which included possible criminal sanctions, were often more concerned with what educators should not have done, such as avoiding membership in specified organizations, rather than what activities they should have pursued.
The U.S. Supreme Court considered two major issues in Keyishian. The first issue was whether Regents of the State University of New York (SUNY) could require faculty and staff members to sign a loyalty oath as a condition of employment. This question arose because Section 3022 of New York State’s Education Law¸ known as the Feinberg Law, required all employees to certify that they were not members of the Communist Party and to notify the president of SUNY if they ever had been members. Under the statute, membership in the Communist Party was prima facie cause to deny or terminate employment of university employees. The second issue in Keyishian concerned whether references to “treasonable or seditious speech or acts” in Section 3021 of the Education Law and Section 105, Subdivision 3, of the Civil Service Law threatened the First Amendment freedoms of speech and press that are fundamental to academic freedom in colleges and universities.
Facts of the Case
Harry Keyishian and others were employees of the University of Buffalo (UB), then a private institution in New York; they became state employees in 1962 when UB joined the SUNY system. In accordance with New York law, the plaintiffs were required to sign the “Feinberg Certificate,” disavowing any association with the Communist Party and declaring their loyalty to state and federal governments. When Keyishian and his colleagues refused to sign on principle, his one-year contract was not renewed. SUNY officials also announced that the contracts of Keyishian’s colleagues would not be extended.
When their contracts were not renewed, the plaintiffs filed suit, alleging violations of their First Amendment rights to free speech and assembly. Subsequently, on remand from an earlier round of litigation, a three-judge federal trial court upheld sections 3021 and 3022 of the Education Law and Section 105 of the Civil Service Law as constitutional. In addition, the court dismissed Keyishian’s claims that the statutes were too vague, lacked a proper legal objective, or violated the plaintiff’s right to due process.
The Supreme Court’s Ruling
On further review, in a five-to-four judgment authored by Justice Brennan, the Supreme Court reversed in favor of Keyishian on the basis that the statutes were unconstitutionally vague, in violation of the First Amendment. At the outset of its analysis, the Court focused on two questions. First, did Section 3022 violate the constitutional rights of higher education faculty and staff? Second, were the provisions in Section 3021 and Section 105 outlawing treasonable or seditious utterances or acts unconstitutionally vague and overbroad and, therefore, likely to infringe the free speech and academic freedom rights of faculty?
After considering the first question pursuant to existing case law, the Supreme Court ruled that membership in a subversive organization in and of itself was not sufficient cause to deny employment at a public college or university. According to the Court, “a law which applies to membership [only] without the specific intent to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of guilt by association which has no place here.” The Court added that mere knowing membership in a subversive organization like the Communist Party, without intent or action to further its aims, is not a justifiable reason for termination from a university faculty appointment. The Court thus concluded that Section 3022 infringed on the First Amendment rights of faculty to speak and assemble. After the Keyishian decision, public colleges and universities could not require faculty and staff to sign loyalty oaths as a condition of employment.
Having rejected the constitutionality of Section 3022, the Supreme Court turned to an analysis of Section 3021 and Section 105 that mandated removal of faculty and staff for “treasonable or seditious” utterances or actions. While commending New York State’s efforts to protect its educational system from subversive persons, the Court cautioned the legislators and SUNY regents that constitutional rights could not be violated in the process. Indeed, the Court noted that it is important to provide an opportunity for political discussion in democratic institutions.
To the Supreme Court, governmental sanctions for vaguely defined “treasonable or seditious” speech or actions could easily have a chilling effect on the free and open discussion that is absolutely essential in a democratic society. The Court held that nowhere was free and open dialogue more important than on college and university campuses, where faculty must have the academic freedom to research, write, teach, and publish free from the fear of retribution based on the unpopularity of their ideas. In fact, the Keyishian Court described academic freedom as “a special concern of the First Amendment which does not tolerate laws that cast a pall of orthodoxy over the classroom” while characterizing the university classroom as “a marketplace of ideas.”
In the end, it was clear to the Supreme Court that the Section 3021 provisions proscribing treasonous and seditious actions were far too vague and overbroad to meet constitutional muster. The Court feared that such provisions could easily have created an atmosphere of suspicion and mistrust on college and university campuses that posed a real and present threat to the academic freedom of faculty in New York state universities. The Court worried that Section 3021 would surely “cast a pall of orthodoxy” over classrooms in the SUNY system if these provisions were not amended and clarified or eliminated entirely. Accordingly, the Supreme Court declared Sections 3021 and 3022 of the Education Law of New York to be unconstitutional. Since being resolved, Keyishian v. Board of Regents, including its description of academic freedom, has been perhaps the most frequently cited decision in jurisprudence dealing with academic freedom.
Robert C. Cloud
See also Political Activities and Speech of Faculty Members; Slochower v. Board of Higher Education of New York City; Sweezy v. New Hampshire
Elfbrandt v. Russell, 384 U.S. 11 (1966).
Shelton v. Tucker, 364 U.S. 479 (1960).
Slochower v. Board of Higher Education of New York City, 350 U.S. 551 (1956).
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
Wieman v. Updegraff, 344 U.S. 183 (1952).
Keyishian v. Board of Regents, 385 U.S. 589 (1967).