Keyishian v. Board of Regents

The U.S. Supreme Court considered two issues in Keyishian v. Board of Regents. The first issue was whether regents of the State University of New York (SUNY) could require faculty to sign a loyalty oath as a condition of employment. The second issue concerned whether references to “treasonable or seditious speech or acts” in Section 3021 of the New York Education Law threatened the freedoms of speech and press that are fundamental to academic freedom in higher education. The Court declared both sections of state law unconstitutional in a decision that remains the foundation of jurisprudence in the area of academic freedom.

Facts of the Case

Keyishian and other appellants were faculty members at the University of Buffalo (UB), a private institution, and they became state employees in 1962 when UB joined the SUNY system. In accordance with state law, they were required to sign the “Feinberg Certificate” declaring their loyalty to state and federal governments. Section 3022 (the Feinberg Law) of New York’s Education Law required all faculty members to certify that they were not members of the Communist Party and that if they ever had been members, they had communicated that fact to the President of SUNY. Membership in the Communist Party was prima facie cause to deny or discontinue employment.

Keyishian refused to sign on principle, and his oneyear contract was not renewed. The state also served notice that the unexpired contracts of his colleagues would not be extended. Keyishian filed suit, alleging violation of their constitutional rights to free speech and assembly. Subsequently, the federal district court declared the New York law constitutional and dismissed the complaint.

The Court’s Ruling

On appeal, the Supreme Court focused on two questions. First, did Section 3022 of the New York Education Law violate the constitutional rights of faculty? Second, were the references to treasonable and seditious actions in Section 3021 and related civil service regulations vague and overbroad and, therefore, likely to infringe the free speech and academic freedom rights of faculty?

After considering the first question in terms of existing case law, the Court ruled that membership in a subversive organization was not sufficient cause to deny employment at a public college or university. Lacking evidence that the person plans to join in a group’s illegal actions, denying them employment “infringes unnecessarily on constitutional rights and implies guilt by association which has no place [in a free society].” Consequently, the Court concluded that merely belonging to the Communist Party was not a constitutionally permissible ground for dismissal. After the Keyishian decision, public colleges and universities could not require faculty to sign loyalty oaths as a condition of employment.

Having rejected the constitutionality of Section 3022, the Supreme Court considered Section 3021 and related civil service regulations that mandated removal of faculty for “treasonable or seditious” acts. While commending New York’s efforts to protect its educational system from subversion, the Court cautioned that constitutional rights could not be violated in the process. Indeed, the Court said, the greater the threat to schools and colleges,

the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the . . . people and that changes, if desired, may be obtained by peaceful means. (p. 602)

To the Supreme Court, governmental sanctions for ill-defined “treasonable or seditious” speech or actions could have a chilling effect on the free discussion that is essential in a democratic society. Nowhere is free and open dialogue more important than on college and university campuses, the Court declared, where faculty must have the academic freedom to research, write, teach, and publish without fear of retaliation based on the unpopularity of their ideas. Describing the classroom as a “marketplace of ideas,” the Keyishian Court defined academic freedom as “a special concern of the First Amendment which does not tolerate laws that cast a pall of orthodoxy over the classroom” (p. 603).

It was clear to the Court that the provisions in Section 3021 referencing treason and sedition were far too vague to meet constitutional muster; they could easily create “an atmosphere of suspicion and distrust” on college campuses, the Court said, and they posed a real threat to the academic freedom of faculty in New York state institutions if not amended or eliminated. Consequently, on January 23, 1967, the Supreme Court declared Sections 3021 and 3022 of the New York Education Law to be unconstitutional. Since that date, Keyishian v. Board of Regents has been perhaps the most frequently cited decision in academic freedom jurisprudence.

Robert C. Cloud

See also Academic Freedom; Loyalty Oaths

Legal Citations

  • Alder v. Board of Education, 342 U.S. 485 (1952). 
  • De Jonge v. Oregon, 299 U.S. 353 (1937). 
  • Elfbrandt v. Russell, 384 U.S. 11 (1966). 
  • Keyishian v. Board of Regents, 385 U.S. 589 (1967). 
  • Shelton v. Tucker, 364 U.S. 479 (1960). 
  • Sweezy v. New Hampshire, 354 U.S. 234 (1957). 
  • Wieman v. Updegraff, 344 U.S. 183 (1952).