By Charles F. Howlett
A recent paper I delivered at the Muted Voices Conference held at the World War I Memorial Museum in Kansas City in 2017 offers a glimpse into the legal quandary public schoolteachers faced when encountering free speech during time of war. Although I had done additional research involving the matter of professors in higher education, the story of how college professors critical of war were allotted wider latitude, unlike teachers, also deserves a hearing.
In my earlier remarks I pointed out that World War I marked a watershed for teachers when it came to freedom of speech; their efforts to criticize war became more restricted in courts of law. For professors in higher education it had the opposite effect, although, at first, they experienced their own trials and tribulations. What led to greater free speech protections for professors in contrast to what I laid out previously regarding schoolteachers?
First World War
Prior to America’s military intervention in World War 1 in April 1917, the nation’s leading advocate of progressive education John Dewey of Columbia University, steadfastly proclaimed that all forms of militarism were “undemocratic, barbaric, and scholastically wholly unwise.” He held fast to those words until President Woodrow Wilson announced that America’s entrance into this conflict against the Central Powers would be an opportunity to achieve social reconstruction at home and abroad. Dewey now reasoned that war might serve as a useful and efficient means for bringing about the desired end of a democratically organized world order based on social and economic justice. Of course, he expected that teachers would enthusiastically follow his lead.
Numerous intellectuals also were willing to support Wilson’s progressive idealism. They were all too eager in their attempts to win over the public mind in what they considered a great struggle to preserve democracy against German autocracy and militarism. Among them were Cornell historian Carl Becker, Wisconsin labor economist John R. Commons, University of Chicago professor A. C. McLaughlin, Columbia historian James T. Shotwell and Guy Stanton Ford, dean of the graduate school at the University of Minnesota. Like Dewey, they considered it an opportunity to test the efficiency of progressive social engineering abroad as well as the collective will of the populace to bring about the kind of democratic progress needed to rid the Old World of its political tyranny.
While Dewey and his prowar acolytes touted the virtues of military engagement, the first clear signal of what would take place on all levels of education actually began on college and university campuses. In one of the worst violations in the history of academic freedom in higher education, a number of the country’s top scholars at Dewey’s place of employment, much to his chagrin since he was an outspoken proponent of academic freedom, were told either to leave or be dismissed, while others resigned in protest. One month prior to the nation going to war the Columbia Board of Trustees became the first private governing board to establish a general program of investigation for determining “whether doctrines which are subversive of…or which tend to encourage a spirit of disloyalty to the government of the United States, or the principles upon which it is founded, are taught and disseminated by the officers of the University.”
A Committee of Nine, consisting of five deans and four faculty members, was appointed to assist the trustees in determining the currents of university teaching on the Morningside campus. For university president Nicholas Murray Butler, a prewar ardent internationalist, loyalty now became synonymous with national patriotism. “Men who feel that their personal convictions require them to treat the mature opinion of the civilized world without respect or with contempt,” he wrote, “may well be given an opportunity to do so from a private station and without the added influence and prestige of a university’s name.” And then he added this stern warning: “This is the university’s last and only warning to any among us, if such there be, who are not with whole heart and mind and strength committed to fight with us to make the world safe for democracy.”
As a result, distinguished professors such as James McKeen Cattell, Leon Fraser, Henry R. Mussey, and Ellery C. Stowell were told to leave—while the eminent historian Charles Beard, who supported the war, resigned in protest over the dictatorial actions of the Columbia Board of Trustees and its president. Upon Beard’s resignation, Dewey somberly told a reporter for the New York Times, that “I regard the action of Professor Beard as the natural consequence of the degrading action of the trustees last week. I personally regret the loss to the university of such a scholarly man and teacher of such rare power.” Of course, Dewey, despite his own disappointment at Butler’s highhandedness, refused to follow Beard’s noble example and leave.
Columbia’s actions did not stand alone. From mid-1917 to the summer of 1918, accusations of disloyalty and disregard for academic freedom occurred on a number of campuses across the nation. In July 1917, for example, the Nebraska State Council of Defense submitted to the University of Nebraska’s Board of Regents a list of twelve professors who were accused by this organization of promoting indifference or opposition to the war. The Board of Regents conducted an investigation. The Board disclosed that three of the professors believed in internationalism, refused to promote the sale of liberty bonds, and openly criticized some of their more patriotic colleagues. After a Board trial those three professors—Clark E. Persinger, E.B. Hoyt, and G.W.A. Luckey—were given the courtesy to resign or otherwise be dismissed outright the following June.
The witch hunt was now well underway. Scott Nearing, the noted antiwar socialist and author of the pamphlet, The Great Madness, was fired from his position at the University of Toledo in 1917 for criticizing preparedness efforts. He was subsequently indicted for treason and later acquitted at trial in 1919. At the University of Virginia, Leon R. Whipple, Director of the School of Journalism, was charged with disloyalty for a speech he made on November 20, 1917, entitled, “The Meaning of Pacifism,” in which he declared that the war would not remove the specter of autocracy nor make the world safe for democracy. His alleged crime: he was a pacifist. After a trial by the state’s Board of Visitors, Whipple was given his pink slip.
In September 1917, the University of Minnesota’s Board of Regents dismissed the chairman of its Political Science department, William A. Schaper, for stating that he did not wish to see the Hohenzollerns completely destroyed. In Maine, the Dean of the University’s law school was removed by the Board of Trustees in March of 1918, on the grounds that his lectures were tinged with pro-German sentiments. In the spring of 1918, when Department of Justice agents were roaming the streets of Ann Arbor, solely by coincidence, several University of Michigan faculty members were given the boot. An instructor of German at Vassar College, Miss Agatha Richrath, was arrested on charges that she believed the German invasion of Belgium was justified and the sinking of the Lusitania was because “the ship was carrying bullets for the murder of German fathers.” In April 1918, she was summarily dismissed and expeditiously replaced.
Although completely exonerated, moreover, professor of modern languages at small Northland College in Ashland, Wisconsin, E.A. Schimmel, was kidnapped from his apartment, tarred, and feathered by a local Knights of Liberty mob in the spring of 1918. For reasons unknown and rather awkwardly anyway, he foolishly managed to convince some locals that he was a spy; it did not help his case that he was of German ancestry. J. J. Schlicker at Indiana State Teachers College, Terre Haute, was accused of pro-German sympathies and fired in 1918, despite obvious evidence that he was a loyal citizen; why he lost his position had more to do with his wife’s pacifism and his willingness to defend her personal beliefs. Cornell University was a bit more humanitarian; Henry W. Edgerton, a young professor of law, was granted an indefinite leave of absence in fall 1918, because he had registered as a conscientious objector.
In these instances and others not recorded, Trustees were wont to sanitize their college or university of any professor whose alleged loyalty was called into question. “Undoubtedly, a number of professors were suspended or dismissed to prove an institution’s loyalty,” historians H.C. Peterson and Gilbert Fite wrote some years ago. “Trustees were likely to get nervous,” they continued, “if they heard news reports of alleged disloyalty at their college or university.” Sadly, “It seemed to require the cleansing procedure of firing someone to show the community and the nation that their institution was properly nationalistic.”
This was the concern, which, previous to these incidents, led to the founding of the American Association of University Professors (AAUP) in 1915. Its creation was designed to send a strong message to those seeking to limit free speech on campus as well as statements on political and social issues outside the classroom (“extramural speech”). Unfortunately, the war and pressures for conformity impeded its efforts in that regard as it publicly abandoned a position of neutrality and “gave its support to suppression of freedom in matters relating to the war.” University officials considered this a blank check to investigate suspected professors while also disregarding the organization’s statement regarding due process.
However, in light of the war experience, AAUP made it its mission to ensure professors’ free speech rights. At its inception, the AAUP issued a Declaration of Principles establishing guidelines for what constitutes academic freedom. The AAUP’s policy statement on “Academic Freedom in Wartime” specifically cautioned: “When charges are brought against a member of a college or university faculty upon any grounds…the person accused should be entitled to have the charges against him stated in writing in specific terms, and to have a fair trial on those charges before either the judicial committee of the faculty, or a joint committee composed of an equal number of professors and trustees.” Embarrassed by its failure to uphold its stated commitment to academic freedom and not long after the Red Scare had ended in 1920, another revised statement was completed in 1925: Conference Statement on Academic Freedom and Tenure. It further reinforced the colleges and universities position on the principle of free speech.
World War II and After
In 1940, AAUP revised once more and put forth its “Statement of Principles on Academic Freedom and Tenure,” which became the benchmark for interpreting how the First Amendment applies to college teachers. It strongly defended the right to free speech and protection for those college educators with respect to loyalty issues. During the Second World War, given that there was little dissent, loyalty and academic freedom matters did not collide with one notable exception.
That exception was the case of Teachers College, Columbia University professor George W. Hartmann. Hartmann was a full tenured professor of educational and social psychology. An avowed pacifist, Hartmann was one of the principal figures behind the Peace Now Movement, which proclaimed that an Allied military victory would not ensure a permanent peace unless accompanied by basic changes in the world power structure. It urged an immediate negotiated peace. In January 1944, Life Magazine ran a story allegedly implicating him as “a fascist, a jewbaiter, a seditionist and a traitor to the United States.” The negative publicity caused the university to dismiss him in May 1944; however, in December 1945, he was restored to his former position. Nevertheless, he sued Life on the grounds of libel but lost in the lower court as well as the Court of Appeals Seventh Circuit. Since he was restored to his former position the question of long-time financial loss became problematic. The psychological trauma this caused him, of course, cannot be calculated in terms of paper money and coins.
At the height of the post-World War II McCarthy scare and Korean War when many states began requiring teachers and other public employees to sign statements asserting they were not involved in any subversive groups a number of legal challenges were raised on First Amendment grounds. During this period the United States Supreme Court began to codify the notion of constitutional academic freedom, which gave greater legal protection to public college and university professors on the subject of loyalty oaths. Although it signaled an important victory for those in higher education it did not always guarantee that professors would not be held accountable by their employers in matters related to opposition to war. It would, of course, depend upon the college or university.
That was indeed the case during the nation’s most controversial military engagement, the Vietnam War. While most readers may be under the impression that the 1950s and early 1960s Supreme Court rulings had finally settled the matter it was actually not the case. There were, in fact, some rare court rulings pertaining to college professors critical of the Vietnam War. In these instances, the results were mixed as in the cases of Colorado educator George Jones, Jr., Benjamin Stolberg in Connecticut, and Morris Starsky in Arizona. All three at the time were serving in tenure-track appointments but not yet afforded legal protections granted to their tenured colleagues. That, in and of itself, may be an instructive lesson for non-tenured professors who seek legal protection under the umbrella of academic freedom when criticizing U.S. military involvement.
In 1966, for instance, George Jones, Jr., former chairman of the philosophy department at Southern Colorado State College, was terminated. Jones, a pacifist, supported a student in his attempt to register for the draft as a conscientious objector, against his parents’ wishes. Jones filed a $300,000 lawsuit against the college president and board of trustees. In a 7-2 decision the U.S. 10th Circuit Court of Appeals sided with the federal judge’s ruling dismissing Jones on the grounds “that under Colorado statute, and apparently in the absence of a contractual provision or of tenure specifically provided by statute, the school and board of trustees has unlimited power to discharge teachers.” Jones was on a probationary appointment.
In contrast, an attempt was made to fire an assistant professor of Geography at Southern Connecticut State College. The Board of Trustees, at the behest of the college president Hilton C. Buley, fired Irving Stolberg because he had sent fellow faculty members an invitation to support a peace program and memorial service in New Haven. The court, in its decision, noted that Stolberg was unfairly discharged in retaliation for the exercise of his First Amendment rights. In this instance, the burden was on the administration to prove the firing justified, which it had failed to do.
Interestingly, in the case of Morris Starsky at Arizona State University, he finally went to court in 1975 and sued the university after he found out that his dismissal in 1970 was due to the illegal efforts of the FBI and its COINTELPRO counterintelligence operation. Starsky, an assistant professor of philosophy who backed New Left activities on campus, was recommended for dismissal by the Faculty Committee on Academic Freedom and Tenure. When it was revealed in court documents that the committee had been set up by the FBI to discredit the New Left and used it to silence Starsky, a federal judge ruled that Starsky had been fired illegally and awarded him a $15,000 settlement. After his firing, he did receive another appointment at San Diego State University
Perhaps the most interesting case, however, involved a tenured professor, which was almost unheard of since almost all professors who were targeted for their antiwar views were non-tenured. This matter involved H. Bruce Franklin, an Associate Professor of English and recognized Melville scholar, at Stanford University, which was widely reported in the press. Franklin, who was an avowed Maoist and also a former Air Force officer, was terminated by Stanford in a 5-2 vote after leading a demonstration protesting the U.S. invasion of Laos, which ultimately led to a campus riot. Despite his academic stature, he did not land another job until three years later. However, in 1985, with the assistance of the ACLU he filed an appeal in the state of California to recoup his salary for the three years it took him to secure another position. However, the state Court of Appeals upheld Stanford’s decision to fire him.
In most cases, which turned out to be not unusual, non-tenured professors who lost their jobs because of their antiwar actions did not go the judicial route; among some of the more notable were Jessie Lemisch at the University of Chicago, who participated in an anti-draft sit-in (“convictions interfered with scholarship”), the pacifist historian Staughton Lynd at Yale, who participated in antiwar actions and teach-ins, Richard Flacks, a sociologist also at the University of Chicago, who was instrumental in leading the New University movement, economist and labor specialist Wells Keddie at Penn State, who help found the New University chapter on campus, and Charles Marxer, a visiting professor in the Philosophy Department at the University of Nebraska auditioning for a tenure-track offer, who organized the Nebraska Draft Resistance Union. What accounts for this?
The reason was because boards of trustees were careful to argue that they stood behind a professor’s free speech rights but questioned their scholarship and service. Furthermore, most were able to find a new position due to a plethora of jobs nationwide during the heyday of college and university expansion. As one contemporary antiwar activist Richard Ohrmann of Wesleyan recounted, “The idea and practices of academic freedom protected a lot of dissent and resistance during those years. Few of the dissenters were fired, almost none de-tenured. Many lost jobs before tenure, then found other jobs.” Still, for those young, non-tenured professors, as well the minuscule fraction de-tenured, who felt that academic freedom should have protected them, regardless, receiving another appointment was of little consolation to their values and ideals.
The recent wars in Iraq and Afghanistan certainly prompted widespread antiwar protest on college campuses and among professors. Historians also organized their own platform, Historians Against the War. However, while there have been cases litigated in the courts involving teachers who lost their positions for criticizing Iraq War 2, such has not been the case with professors in higher education. Despite what occurred during World War I and Vietnam, it appears that university and college administrators have finally recognized that the codification of academic freedom afforded professors is best left unchallenged when speaking truth to power. To a considerable extent, courts now have made it clear that freedom of inquiry and research and freedom of teaching are essential in a university setting for the advancement of knowledge and the discovery of truth. There is no “captive audience” given the legal definition of an adult in this instance. Yet can we be absolutely sure should another major conflict erupt? For non-tenured professors, especially, will loyalty, camouflaged as scholarship and service, be used as an instrument to circumvent free speech? Hopefully, time will not have to tell us.
Charles F. Howlett and Audrey Cohan, John Dewey, America’s Peace-Minded Educator (Carbondale, IL: Southern Illinois University Press, 2016)
Hans-Joerg Tiede, University Reform: the Founding of the American Association of University Professors (Baltimore: Johns Hopkins University Press, 2015)
George T. Blakey, Historians on the Homefront: American Propagandists for the Great War (Lexington: University Press of Kentucky, 1970)
George Creel, How We Advertised America (New York: Harper Bros., 1920); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (New York: W.W. Norton & Co., 2004)
Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech (New York: Viking Press, 1987)
Zechariah Chafee, Jr., Free Speech in the United States (Cambridge, MA: Harvard University Press, 1941), and “Freedom of Speech in War Time,” Harvard Law Review 32 (1919), 928-41
Minutes of the Trustees of Columbia University, XXXVII (March 5, 1917), Special Collections, Butler Library, Columbia University
Nicholas Murray Butler, Scholarship and Service (New York: Charles Scribner’s & Sons, 1921)
Nicholas Murray Butler, “Commencement Day Address, June 6, 1917, Nicholas Murray Butler Papers, Special collections, Butler Library, Columbia University
New York Times (October 9, 1917), 1
Walter P. Metzger, Academic Freedom in the Age of the University (New York: Columbia University Press, 1955)
David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980)
H.C. Peterson and Gilbert Fite, Opponents of War, 1917-1918 (Seattle: University of Washington Press, 1957), 102-109
“Trial of the Nebraska Professors, A Reflection,” Educational Review LVI (December 1918), 415-23
New York Tribune (April 30, 1918); William E. Matsen, “Professor William S. Schaper, War Hysteria and the Price of Academic Freedom,” Minnesota History 51, no. 4 (Winter 1988), 131-137
Carol Gruber, Mars and Minerva: World War I and the Uses of Higher Learning in America (Baton Rouge, LA: Louisiana State University Press, 1976)
“The Professors in Battle Array,” Nation CVI (March 7, 1918), 255
“Academic Freedom in Wartime,” AAUP Bulletin (February-March 1918), 30-47
AAUP 1940 Statement of Principles on Academic Freedom and Tenure, http://aaup.org/report/1940-statement-principles-academic-freedom-and-tenure (retrieved 9/1/2017)
Hartmann v. American News Co. 171 F. 2d 581 (1948), and Glen Zeitzer and Charles F. Howlett, “Political Versus Religious Pacifism: the Peace Now Movement of 1943,” The Historian XLVIII, (3) (May 1986), 375-393
Adler v. Board of Education, 342 U.S. 485 (1952)
Wieman v. Updegraff, 344 U.S. 183 (1952)
Sweezy v. New Hampshire, 345 U.S. 234 (1957)
Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)
George Jones, Jr. v. Jesse Victor Hopper, and Board of Trustees, United States Court of Appeals, Tenth Circuit, March Term—1969, American Civil Liberties Papers, No. 1, 1970, Seeley G. Mudd Library, Princeton Universit
“Professor’s Dismissal Upheld in SCSC Case,” The Denver Post (May 20, 1969), 23
Stolberg v. Board of Trustees, 474 F. 2d 485 (2d Cir. 1973)
Carrie Deakin, “’A University Worthy of the Name’: Political Intellectuals and the New Left at Arizona State University,” http://nau/uploadedfiles/Academic/CAL/History/-Shared/Deakin%20pdf. (retrieved 10/10/2017)
Gus Archondo, “A Three-Part Analysis of the Antiwar Movement during the Vietnam War” (2016), http://digitalcommons.unl.edu/historydiss/88 (retrieved 10/10/2017) and “Apathy and Activism in the Heartland: The Antiwar Movement at the University of Nebraska, 1965-1970,” Peace & Change Vol. 42 (3) (July 2017), 383-409
Richard Ohrmann’s opinion piece, “Academic Freedom’s Best Days—Inside Higher Ed,” https://www.insidehighered.com/views/2011/04/19/academic-freedoms-best-days (retrieved 10/11/2017)
Kenneth J. Heineman, Campus Wars: The Peace Movement at American State Universities in the Vietnam Era (New York: New York University Press, 1993)
“The State,” LA Times, January 7, 1986 (retrieved 10/12/17)
Kenneth Lamont, “In the Matter of H. Bruce Franklin,” New York Times, January 23, 1972 (retrieved 10/12/17)
Rachelle Marshall, “The Bruce Franklin Affair,” The Progressive (May 1972), 27-29, https://wwwmarxist.org/hist/erol/mcm-1a/Franklin-affair.pdf (retrieved 10/11/2017).
Charles F. Howlett is Distinguished Professor of Education Emeritus, Molloy College