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Written by Stephen Wermiel, published on January 1, 2009 , last updated on February 18, 2024

Keyishian v. Board of Regents (1967)

In Keyishian v. Board of Regents, 385 U.S. 589 (1967), an important decision for the concept of academic freedom, the Supreme Court declared unconstitutional a New York State law intended to prevent the employment of “subversives” in teaching and other public employee jobs. The ruling was one of the last of the “Communist cases” that occupied the Court in the 1950s and 1960s.


Instructor’s contract not renewed after he refused to sign an oath saying he wasn’t a Communist

Harry Keyishian was an English instructor at the State University of New York at Buffalo when he refused to sign an oath stating that he was not a Communist. Because he failed to comply with state law and administrative rules, his contract was not renewed. He and other faculty sued, and a federal court upheld New York’s regulatory scheme. The U.S. Supreme Court reversed by a 5-4 vote, ruling that the New York law and regulations violated the First Amendment.


Court ruled that the “Communist” regulation scheme was unconstitutional

Writing for a narrow majority, Justice William J. Brennan Jr. first pointed out that an earlier ruling on the same New York law, Adler v. Board of Education (1952), did not address all the issues before the Court in Keyishian and therefore was not a binding precedent.


Justice Brennan then revealed that the Court found flaws in the New York law. He wrote that terms in the law — seditious, treasonous, and teaching or advising the doctrine of overthrow of the government — were too vague to define speech or conduct that was prohibited. The vagueness of the terms and the complexity of the New York regulatory scheme led Justice Brennan to conclude: “It would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery.”


He also warned that the breadth of the regulations threatened the concept of academic freedom, which he regarded as “a special concern of the First Amendment.” Guarding against the “chilling effect” on free speech requires “sensitive tools” that make clear what speech and conduct are prohibited.


Justice Tom C. Clark dissented, arguing that the Court should not decide the case because the required certification of not being a Communist had been scrapped by the state in 1965. Justice Brennan had contended in the majority decision that the laws intended to find subversives and keep them out of state employment were still on the books and would continue to have a chilling effect on teachers and others, even if teachers were no longer required to fill out a certificate stating they were not Communists. But Clark argued that this scenario meant that no issue of contention was actually before the Court.


Brennan’s opinion boosted the concept of academic freedom

Brennan’s majority opinion is often credited with helping to boost the concept of academic freedom as a constitutionally protected value. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned,” Brennan wrote.


This article was originally published in 2009. Stephen Wermiel is a professor of practice at American University Washington College of Law, where he teaches constitutional law, First Amendment and a seminar on the workings of the Supreme Court. He writes a periodic column on SCOTUSblog aimed at explaining the Supreme Court to law students. He is co-author of Justice Brennan: Liberal Champion (Houghton Mifflin Harcourt, 2010) and The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (ABA Publishing, 2014).


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