by Ernst H. Kantorowicz
The Fundamental Issue was already printed and ready to be sent to interested parties, in the fall of 1950, when the lawyers for the group of tenured non-signers of the loyalty oath advised against making the essay public while the case was being litigated.
Kantorowicz had resigned from UC Berkeley and joined the faculty of the Institute for Advanced Study, in Princeton, when the court decision was finally rendered; with his cause vindicated he saw no reason to distribute the pamphlet, and so the whole lot was thrown away.
Although published a few years ago in German translation, the 1999 reprint of the 1950 original thus amounts to the public debut of the work in English, prepared for the benefit of those attending the 50th Anniversary Retrospective of the loyalty oath.
you are not a Communist, why can't you sign the oath?" How
often has this question been asked and still is asked? The answer
is that from the very beginning it was true that "The issue
is not Communism; it is the welfare and dignity of our University"
(Alumni Letter, August 17, 1950). The forcibly imposed oath with
its economic sanctions and encroachments on tenure, rejected almost
unanimously by the Faculties of the University of California, was
at first one of the most thoughtless and wanton, later one of the
most ruthless attacks on the academic profession at large. In order
to enforce the oath which "is not required by Law" (Governor
Warren: February 28, 1950), the faction of the Board of Regents
headed by Regent Neylan has not only violated the rules of tenure;
bit by bit they have succeeded in virtually abolishing the very
idea of tenure as well as that of trial by jury. Finally those gentlemen,
victors pro tempore, could
allow themselves to put their foot on the prostrate body of what
has been one of the world's proudest and most renowned Faculties.
They could assume the power to dictate what was crime and what not,
demand of the Faculty unconditional obedience to the Board of Regents
even in matters of conscience, and crush non-conformists by an open
"breach of faith" (Governor Warren and his group: August
I did not sign the oath-‑although, or because, I am not and
never have been a Communist, and although, or because, I am genuinely
conservative and never have been taken for anything else--I shall
indicate in the following pages. This is not intended to be the
history of "The Year of the Oath." This subject has been
admirably dealt with by Professor George R. Stewart. I merely wish
to illustrate, by a few documents and a few marginal notes, some
aspects of the oath controversy and its fundamental problems.
the fundamental issue is has been obvious to me from the minute
the controversy started. Perhaps I have been sensitive because both
my professional experience as an historian and my personal experience
in Nazi Germany have conditioned me to be alert when I hear again
certain familiar tones sounded. Rather than renounce this experience,
which is indeed synonymous with my "life," I shall place
it, for what it is worth, at the disposal of my colleagues who are
fighting the battle for the dignity of their profession and their
would have been easier for me than to sign, sit back, tend my garden,
books, and manuscripts, and be that "naïve
professor" that has been caricatured once more during the oath
controversy. However, where a human principle, where Humanitas
herself is involved I cannot keep silent. I prefer to fight.
true nature of the problem has since been recognized by many individuals
as well as learned societies of the country. The American Psychological
Association has recommended that its members not accept positions
at the University of California "until such time as tenure
conditions meet acceptable standards." Other professional associations
have announced, or are ready to announce, similar actions, and the
haze shrouding the affair is about to vanish. With the present paper
I wish to support also our supporters.
first of my documents is my own warning to my colleagues, delivered
to the Academic Senate on the first meeting in connection with the
oath. It is, so to speak, an expression of my convictions as a historian.
The second illustrates, if in shorthand, my personal experience.
The third, a letter from my friend Walter W. Horn, Acting Chairman
of the Department of Art, who kindly agreed to its publication,
illustrates the grave conflict of conscience and savage economic
coercion to which, after fifteen months of pressure and struggle,
he had finally to yield. He shared the fate of hundreds of colleagues,
highly respectable and upright men, who for the sake of their families
and for lack of economic independence could not afford to hold out
to the last.
the "Marginal Notes" I shall try to bring into focus what
appears to me as "The Fundamental Issue." They do not
exhaust the matter. The documents in the "Appendix" speak
for themselves. They refer to the problem of tenure.
quotes reproducing the words used at the meeting of the Board of
Regents on August 25, 1950, are taken from the transcript printed
as Appendix VI of the "Petition for Writ of Mandate" filed
by Mr. Stanley A. Weigel, Attorney for the "Non‑Signers,"
at the District Court of Appeal, State of California, Third Appellate
District, in Sacramento, California.
the reader's convenience I give here the names of the Regents. The
Board is divided into two groups, one led by Governor Warren, the
other by Regent Neylan.
Earl Warren, Earl J. Fenston, Farnham P. Griffiths, C. J. Haggerty,
Victor R. Hansen, Edward H. Heller, William G. Merchant, Chester
W. Nimitz (absent at August meeting), Roy E. Simpson, Robert Gordon
Sproul (President of the University), Jesse Steinhart;
Francis Neylan, Brodie E. Ahlport, John E. Canaday, Sam L. Collins,
Edward A. Dickson, Sidney M. Ehrman, Maurice E. Harrison, Fred Moyer
Jordan, Goodwin J. Knight (Lieutenant Governor), Arthur J. McFadden,
Edwin W. Pauley, Norman F. Sprague.
California, October 8, 1950.
June 14, 1949
a historian who has investigated and traced the histories of quite
a number of oaths, I feel competent to make a statement indicating
the grave dangers residing in the introduction of a new, enforced
oath, and to express, at the same time, from a professional and
human point of view, my deepest concern about the steps taken by
the Regents of this University.
history and experience have taught us that every oath or oath formula,
once introduced or enforced, has the tendency to develop its own
autonomous life. At the time of its introduction an oath formula
may appear harmless, as harmless as the one proposed by the Regents
of this University.1 But nowhere and
never has there been a guaranty that an oath formula imposed on,
or extorted from, the subjects of an all‑powerful state will,
or must, remain unchanged. The contrary is true. All oaths in history
that I know of, have undergone changes. A new word will be added.
A short phrase, seemingly insignificant, will be smuggled in. The
next step may be an inconspicuous change in the tense, from present
to past, or from past to future. The consequences of a new oath
are unpredictable. It will not be in the hands of those imposing
the oath to control its effects, nor of those taking it, ever to
step back again.
harmlessness of the proposed oath is not a protection when a principle
is involved. A harmless oath formula which conceals the true issue,
is always the most dangerous one because it baits even the old and
experienced fish. It is the harmless oath that hooks; it hooks before
it has undergone those changes that will render it, bit by bit,
less harmless. Mussolini Italy of 1931, Hitler Germany of 1933,
are terrifying and warning examples for the harmless bit-by-bit
procedure in connection with political enforced oaths.
shows that it never pays to yield to the impact of momentary hysteria,
or to jeopardize, for the sake of temporary or temporal advantages,
the permanent or eternal values. It was just that kind of a "little
oath" that prompted thousands of non-conformists in recent
years, and other thousands in the generations before ours, to leave
their homes and seek the shores of this Continent and Country. The
new oath, if really enforced, will endanger certain genuine values
the grandeur of which is riot in proportion with the alleged advantages.
Besides, this oath, which is invalid anyhow because taken under
duress, may cut also the other way: it may have the effect of a
drum beating for Communist and Fascist recruits.
new oath hurts, not merely by its contents, but by the particular
circumstances of its imposition. It tyrannizes because it brings
the scholar sworn to truth into a conflict of conscience. To create
alternatives--"black or white"--is a common privilege
of modern and bygone dictatorships. It is a typical expedient of
demagogues to bring the most loyal citizens, and only the loyal
ones, into a conflict of conscience by branding non‑conformists
as un-Athenian, un-English, un-German, and--what is worse--by placing
them before an alternative of two evils, different in kind but equal
crude method of "Take it or leave it"--"Take the
oath or leave your job"--creates a condition of economic compulsion
and duress close to blackmail. This impossible alternative, which
will make the official either jobless or cynical, leads to another
completely false alternative: "If you do not sign, you are
a Communist who has no claim to tenure." This whole procedure
is bound to make the loyal citizen, one way or another, a liar and
untrue to himself because any decision he makes will bind him to
a cause which in truth is not his own. Those who belong, de facto
or at heart, to the ostracized parties will always find it easy
to sign the oath and make their mental reservation. Those who do
not sign will be, now as ever, also those that suffer--suffer,
not for their party creed or affiliations, but because they defend
a superior constitutional principle far beyond and above trivial
am not talking about political expediency or academic freedom, nor
even about the fact that an oath taken under duress is invalidated
the moment it is taken, but wish to emphasize the true and fundamental
issue at stake: professional and human dignity.
are three professions which are entitled to wear a gown: the judge,
the priest, the scholar. This garment stands for its bearer's maturity
of mind, his independence of judgment, and his direct responsibility
to his conscience and to his God. It signifies the inner sovereignty
of those three interrelated professions: they should be the very
last to allow themselves to act under duress and yield to pressure.
is a shameful and undignified action, it is an affront and a violation
of both human sovereignty and professional dignity that the Regents
of this University have dared to bully the bearer of this gown into
a situation in which--under the pressure of a bewildering economic
coercion-‑he is compelled to give up either his tenure or,
together with his freedom of judgment, his human dignity and his
responsible sovereignty as a scholar.
Robert G. Sproul
October 4, 1949.
quoting Aristotle, has remarked that "every oblique action
of government turns good men into bad citizens." I deeply deplore
that under the impact of the recent events I feel compelled to reckon
myself--perhaps self-righteously--among the "bad academic citizens,"
since I cannot conform to the demands of the Board of Regents to
sign a political oath.
political record will stand the test of every investigation. I have
twice volunteered to fight actively, with rifle and gun, the left-wing
radicals in Germany; but I know also that by joining the white battalions
I have prepared, if indirectly and against my intention, the road
leading to National-Socialism and its rise to power.
shall be ready at any moment to produce sworn evidence before the
court of the Federal Bureau of Investigation, which has admitted
me to citizenship during the war. But my respect for the University
of California and its tasks is such that I cannot allow myself to
believe that the base field of political inquisition, which paralyzes
scholarly production, should be within the range of its activities.
Robert G. Sproul
August 23, 1950.
compliance with your directive of August 4th to Chairmen and Administrative
Officers requesting information as to prospects of reactivation
of members of their staff who have Reserve status in the Armed Services,
I am communicating to you that I was reactivated, on August 21,
for the purpose of a final physical examination and that I expect
to receive a call for active duty as Captain, Infantry, for a minimum
period of 21 months as soon as my physical examination report has
thus confronted a second time with a disruption of my academic career,
and feeling unable to expose my wife and my son to the consequences
of being denied continuance of my civilian occupation upon return
from military duty, it is with profound regret that I find myself
compelled to yield to the pressure which the Regents saw fit to
exercise in order to extort from me a declaration concerning my
political beliefs. I am enclosing the requested statement, signed.
should like to make known that, in doing so, I am acting against
the better precepts of my conscience and for no other reason than
that of protecting my family against the contingencies of economic
distress. In a letter addressed to you on May 12th, I have set forth
as one of my essential reasons for opposing the oath and its contractual
equivalent the fact that their imposition has coerced, under the
threat of dismissal, hundreds of honorable men and women to lend
their signatures to a form of employment which they consider detrimental
to the welfare of the University and an insult to the academic profession
at large. It was in avoidance of pressures of this type that I left
Germany in 1938 and came to this country. And it was in the desire
of contributing to the eradication of such methods that I volunteered
during the last war to take up arms against the country of my birth.
am expecting my recall to active duty in the present conflict with
the bitter feeling that, this time, I shall be fighting abroad for
the defense and propagation of Freedoms which I have been denied
in my professional life at home.
report on the department as a whole with regard to expected enlistments
and reactivations will follow prior to September 1st and as soon
as the last answers have been received from members who are out
The original text of the so-called Loyalty Oath, as suggested
in June, 1949, read:
can be said against this principle; but had it prevailed at the
meeting of the Board of Regents of the University of California
on August 25, 1950, the group headed by Governor Warren, including
Admiral Nimitz and President Sproul, would probably have carried
the day by auctoritas
as the "saner part." Since, however, votes in a democracy
are not weighed but counted, which has its great advantages too,
the faction headed by Regent John Francis Neylan decided the issue.
Thirty-one professors were ousted by a 12‑10 majority, thus
reversing the decision of Governor Warren's 10-9 majority in July.
Had Admiral Nimitz been present at the August meeting, the majority
would have been 12-11; for he wired he would have cast his vote
with Governor Warren--as it were, with the "saner part."2
"sanity" in the sense of Canon Law has anything to do
with logic and consistency, those qualities were heavily clouded
on many occasions at the August meeting. "Gentlemen, that does
not make sense," said Governor Warren. "While it is inconsistent,
I shall vote for it," declared President Sproul. "You
are asking me to vote for a motion now that reaffirms the policy
that I have voted against," complained Regent Steinhart. The
lack of "sanity," it seems, was very obvious to the "saner
Communism Not the Issue.
might have been expected, Communists have not been found on the
Faculty, either among the non-signers or, so far, among the signers.
Thus, when Regent Heller, at the August meeting, repeatedly asked
the crucial question whether "it is understood by all Regents
that there is no accusation of Communism made against any of the
thirty-two that we are about to fire," even the most adamant
members of the majority group agreed or kept silent. Regent Neylan
himself, on another occasion, could even heckle: "Does anybody
here want to--Regent Heller, or anybody--want to charge them with
of the Faculty to the Board of Regents, "discipline,"
and "conformity" to the Regents became the new issue.
Governor Warren described it correctly: "We are discharging
these people because they are recalcitrant and won't conform."
"Conformity" To Whom?
Conformity in Controversial Matters a Condition of Appointment.
anyone who has lived through the bitter experience of Hitler Germany,
the use and abuse of the Communist menace for political and propaganda
purposes is a familiar device. It leads, whether so contemplated
or not, almost automatically to the establishment of absolute power,
to totalitarian management and the demand for unconditional obedience
in the name of anti-Communism. It leads, which is worse, to fictitious
"victories" over Communism and entails a dangerous and
frivolous underestimation of the true power and genuine danger of
the other hand, talking about naïveté, is there anything more naïve
than the belief of those Regents allegedly "experienced in
the ways of the world" that by means of tom-fooleries and mummeries
a danger so grave as Communism can effectively be fought? "Children
are to be deceived with toys, men with oaths" (Plutarch).
Religious Scruples and Conscience.
is not the private property of any particular denomination. It is
inter-denominational, and its violation is painful no matter whether
that conscience belongs to a Lutheran or Roman Catholic, to a Quaker
or Unitarian, or even to a scholar who may claim to have a professional
conscience. It is obvious that the scholar's conscience, though
non-denominational, is as "religious" as the professional
conscience of the judge and the minister; and it should be equally
obvious that it is his conscience which makes the scholar what he
is, and that to act according to his professional conscience is
indeed the function of the University professor.
Ehrman: I want to point out
that it seems to me . . . that there is this point of distinction:
Firstly, the professors, employees, or whoever they are, recommended
under the President's motion to be accepted for employment, are
not officers, in any sense of the word, of the university. They
are employees. . . . In the second place, it seems to me that if
we assume that they have been employed, what does that mean? Do
they have any vested rights to the position? It merely means that
they have the right to enjoy the salary for the year . . .
[the dismissed professors] would be entitled to their salary, and
that is all, if they had a vested right in the appointment, which
I doubt very much because they are merely employees of the Board
of Regents and they are not officers . . . The Baker case refers
to people who are entitled to a public office. It has no reference
whatsoever to people who are employed.
this doctrine of the Baker case applied to the university, it would
mean that a man who was employed as a gardener on the grounds, a
janitor in the buildings, would have a vested right to the office.
I cannot see [that], whether a man is employed in one capacity,
such as I have used for purpose of illustration, [or is] employed
as a professor or an instructor, that there is any distinction between
Warren: Regent Ehrman, as
far as I am concerned, I am of the opinion that whether these people
are public officers, or whether they are executing a public trust,
is a distinction without difference. We recognize that these people
are performing important public functions. That is the reason we
are having this discussion today; and the importance of the appointment
of a President of this University, or a Vice President, or a Dean,
or the head of a department, or a professor or even an instructor,
it seems to me, is of equal importance to the public as the appointment
or election of any other public officer; and I don't believe that
we have the right to consider here that these people don't rise
to the dignity of a City Councilman or a constable or other public
officers who come under this rule. They are performing a public
function just as much as I am as Governor of this State. And I believe
that their rights and their prerogatives and their status before
this Board should be treated with equal solemnity and consideration.
cannot, I think, be grateful enough to Governor Warren for his fine
defense of the status of the profession. But our thanks should go
also to Regent Ehrman, who, being himself the founder of a professorship
(and not a janitorship) on the Berkeley campus, has certainly given
many a thought to the academic profession and to whose generosity
the present writer personally is greatly indebted. We are grateful
to him for having made his views so perfectly clear.
Janitors and Professors.
have unions of those professions not been formed? Is that omission
due only to the naiveté
of those professions, or are they too conceited to join organized
labor? Why should not the judges form the Honorable Union of Court
Employees, and the ministers establish themselves as the Holy Union
of Church Employees, followed by the professors' Enlightened Union
of University Employees? Why is it so absurd to visualize the Supreme
Court justices picketing their court, bishops picketing their churches,
and professors picketing their university?
The answer is very simple: because the judges are the Court, the ministers together with the faithful are the Church, and the professors together with the students are the University. Unlike ushers, sextons, and beadles, the judges, ministers, and professors are not Court employees, Church employees, and University employees. They are those institutions themselves, and therefore they have certain prerogative rights to and within their institutions which ushers, sextons, and beadles or janitors do not have.
Accessory and Essence.
Why Not a Professors' Union?
Employees of the Regents.
a private business corporation it might be said that the Board of
Directors constitutes also the corporation especially if the Directors
are also the shareholders. In a State University, however, the Regents
are neither shareholders nor paid directors. They are unpaid trustees.
They are the intermediaries and administrative agents of something
they are not identical with--the People of California--and for something
they are not identical with either the body of teachers and students.
These agents honoris causa
can never claim, nor do they normally claim, to constitute "The
University." They are those who, along with many other functions,
have to protect the University against attacks and keep unrest from
their "ward." They are, in that respect, the police of
the University. But where, except in the caricature of the Prussian
"Police State," does the police constitute The State or
hitherto unquestioned University structure would be overthrown completely
if indeed the professors were, by definition, nothing but "employees"
of the Regents and the Regents their "bosses." For only
so long as certain vested and autonomous rights of the body of teachers
and students are respected can the professors refrain from forming
a "union." If the professors are nothing but hirable lecture
machines and firable employees, who, above anything else, have to
obey and conform, regardless of their qualities as men and as teachers;
that is, if really they are hired on a business basis, then they
will have to organize in a business fashion and establish their
union. Actually, the present intransigent and shortsighted policy
of the anything but conservative radicals among the Regents of the
University of California might very easily touch off a general movement
aiming at unionizing the American university professors. But from
that moment onward the aspect of American universities would change
profoundly. Mass decapitations of professors such as have taken
place monthly in California's academic abattoir (157 + 6 + 31),
would unfailingly lead to statewide, perhaps nationwide, refusal
to work on the part of the unionized professors, and little opportunity
would be left to any Regents to exercise absolute power.
that may be, the Regents' effort to make teaching a trade is entirely
revolutionary. Should they succeed, their inconsiderate experiment
would violently transform one of the few remaining conservative
institutions, the University, and it would uproot one of the few
relatively conservative sectors of modern society, that of university
Trade and Profession.
janitor is paid by the hour. He has his shift during which he is
held to perform certain well described duties. His work is clearly
defined and definable. Once he has performed his daily duties and
has left off work he is a completely free man. Additional work is
neither expected nor demanded, except by special agreement and with
defined duties of a university professor are few. His classwork
at the University of California may consist in five hours of lecturing
and in a seminar of two hours. In addition, the professor will have
to do some committee work, sit on examination boards, have conferences
with his students during office hours, guide their work for advanced
degrees, and may run through the catalogues of second-hand book
dealers to order books for the University Library. If we except
the registered classwork, his duties are anything but clearly defined.
Nor is he paid merely for the seven hours during which he meets
his classes and seminars. The amount of time and effort he wishes
to invest in preparing for his classes, is left to his own judgment.
Whether it takes him two days to prepare a single lecture, or two
hours, or two minutes or less, is left to him. Whether he revises
his lectures by integrating his own research work and that of others,
or simply rehashes some textbook, is left to him. Whether he devotes
much or little of time and care to the M.A. and Ph.D. theses of
his pupils, is his own business. It is left to him whether he indulges
in research work from which his classes would profit and his university
would reap fame. And it is left to him how much time and energy
he puts into his committee work, into his conferences with students,
or into the aggrandizement of his university's library. In short,
it is entirely up to him how much of his life, of his private life,
he is willing to dedicate to the University to which he belongs
and which he, too, constitutes. The exact amount of time he invests
is bound by no regulations. It is purely a matter of Passion, of
Love, and of Conscience.
here there emerges yet another difference between janitor and professor:
you can buy labor, but you cannot buy Passion and Love nor the scholarly
Conscience. For once there is something that is not marketable,
and the poorly informed Regents should know that by trying to make
our conscience venal they kill our passion and love for our institution
because we cease to be one with it.
whatever angle one may look at the academic profession, it is always,
in addition to passion and love, the conscience which makes the
scholar a scholar. And it is through the fact that his whole being
depends on his conscience that he manifests his connection with
the legal profession as well as with the clergy from which, in the
high Middle Ages, the academic profession descended and the scholar
borrowed his gown. Unlike the employee, the professor dedicates,
in the way of research, even most of his private life to the body
corporate of the University of which he is the integral part. His
impetus is his conscience. Therefore, if you demoralize that scholarly
conscience, that love and passion for research and for teaching,
and replace all that in a business fashion by strictly defined working
hours, prescribed by the "employer," you have ruined,
together with the academic profession, also the University! Only
the culpably naïve
ignorance on the part of malevolent Regents, not knowing what a
scholar's life and being is, could venture to break the backbone
of the academic profession--that is, its conscience in order to
"save the University," nay, --to dismiss a scholar for
that very conscience which makes him a scholar.
like the spirit, bloweth where it listeth. All that stupid destruction
of genuine values and valuable human beings is carried on for the
sake of a hysterical demand the utter folly of which has been attested
to nationwide; it has been attested to also by the professors' new
company, the gambling-house nude, who takes her loyalty oath to
pose in a champagne glass for the customers. Folly knows no limit.
We can only pray with Erasmus:
Sancte Socrates, ora pro nobis!
Why Reduce the Status of Professors?
answer, again, is simple: that strange attitude of the majority
Regents is the direct outcome of their efforts to enforce high-handedly
a special loyalty oath. In order to enforce that oath and to establish
that unspeakable alternative "Sign or be fired" two main
obstacles had to be removed. The first was constitutional; the second
referred to tenure.
The Constitutional Obstacle.
no other oath, declaration or test shall be required as a qualification
for any office or public trust" (Article XX, Section 3).
or not an additional oath could be imposed upon the Faculty at all,
would depend upon whether or not the term "office or public
trust" applied to the members of the Faculty of the State University.
It would be, writes Max Radin, "a question of chopping and
paring and refining and adjusting verbal symbols. But surely no
one who can read can doubt the general purpose of the constitutional
August 25th, Governor Warren held that it was a distinction without
difference whether Faculty members are public officers or executing
a public trust, but he maintained unambiguously that they "are
performing a public function just as much as I am as Governor of
the State." He finally claimed that "their rights and
prerogatives and their status before this Board should be treated
with equal solemnity and consideration”--that is, "equal"
to that of public officers.
Warren's opinion was not shared by his opponents. The loyalty oath,
as demanded before April 21, 1950, could be enforced without violation
of the Constitution only if the professors had no public status
whatsoever and if they were like hired hands private "employees"
of the Regents, which "merely means that they have the right
to enjoy the salary for the year."
constitutional issue explains sufficiently the endeavors to reduce
the status of the professors from men having public functions to
private employees. Once the Faculty member has become the private
employee of the Board, hired like the nude in the champagne glass
for entertaining the customers, probably students, those Regents
were free to demand any additional oath, any declaration or color
of hair they desired. The Constitution, at least, with its impractical
inhibition, no longer barred the way
is not quite impossible that the law courts, at one time or another,
will make a decision concerning the status of professors in accord
with the view of Governor Warren, meaning that the Constitution
(Article XX, Section 3) actually does apply to professors. In that
case the Regents would have coerced, by means of economic threats
and moral pressure, hundreds of Faculty members to commit an unlawful
act. Aggravating would be the fact that acquiescence to the demand
of the Regents on the part of those Faculty members might appear
as an equivalent of the money paid to a blackmailer for not revealing
a discreditable secret, that is, for not divulging the discreditable
slander intimating that the non-signer was a Communist.
tenure is violated, academic freedom goes. If a professor is not
sure of his permanent tenure, if he has to fear dismissal for unorthodox
opinions or non-conformity, he loses his freedom of action and speech.
The same is true with regard to the judge who loses his conscientious
freedom and freedom of prejudice if his judgment were impaired by
the fear of losing his job. Hence, there can be no true academic
freedom unless tenure is assured.
oath as well as its contractual equivalent could be imposed, and
the Faculty forced into submission, only if the rules of tenure
were flouted. So long as the rules of tenure prevailed the alternative
"Sign or be fired" was meaningless because it could not
be put into effect. Therefore tenure had to disappear: a tampering
with the so-called contracts began and, at the same time, the Faculty
Committee on Privilege and Tenure was frozen out.
Rules of Tenure.
the University of California the legal right
to tenure seems to have been kept vague, nor was it ever so clearly
defined as in Mid-Western and Eastern Universities. Nevertheless
there were certain rules of tenure. The Manual
of the Academic Senate makes it perfectly clear that professors
and associate professors possessed a claim to tenure, and that others
acquired tenure through length of service, that is, after eight
years. The Instructions to
Appointment and Promotion Committees, valid in 1943, made it
no less clear that tenure was respected for the grade of associate
professor and above that rank. The instructions read:
Committee should bear in mind that normally the University will
terminate appointments of assistant professors who do not qualify
for promotion after two terms (six years) of service in that grade.
Associate professors, however, who do not qualify for further promotion
will be retained indefinitely [!] in that grade."
Committees were held to consider promotion to the grade of associate
professor most carefully because that rank implied tenure.
in 1940, the Vice-President of the University, Provost Dr. Deutsch,
acting for the President, could congratulate a Faculty member on
the promotion to associate professorship, and write: "This
not only marks an advance in itself but places you on the permanent
status which is so important in the academic career" (Appendix
E). Similarly, the ninth year of appointment to one of the lower
grades of the academic hierarchy was considered of special importance
because after eight years a Faculty member acquired tenure "by
length of service."
would be easier than to assemble more material evidencing the existence
of tenure de facto. The
Manual of the Academic Senate reproduces a Senate resolution
to the effect that the tenure members of the Faculty are understood
to be appointed "continuously during good behavior and efficient
service." This rule, valid since 1899, was laid down, at the
latest, in 1919. It was adopted by the Academic Senate in 1920,
and was re-adopted in 1939. The rules of tenure have not been challenged
by the Regents and have been generally observed for thirty years
or more. There was, to say the least, a "tacit understanding"
according to which tenure existed and was observed even though it
was not expressed in unambiguous legal terms. However, a "tacit
understanding" is as binding among honest men as a legal stipulation;
and if a "tacit understanding" remains uncontradicted
by either party over a period of thirty years or more, there accrues
a moral obligation and an obligation in equity to observe that understanding
which is hardly less binding than a legally stipulated obligation.
Faculty, therefore, confident in the fairness and loyalty of the
Board of Regents could rightly assume that in view of tenure they
were just as secure, and certainly not worse off, than their equals
at the other great Universities of the country.
other words, to enforce the oath or its equivalent by threat of
summary dismissal the Regents had to abolish a, perhaps not legally
codified, but morally existing right to tenure guaranteed by custom,
tradition, and by certain rulings which had not been contested,
or had even been agreed to, by the Regents over a long period, and
which were rightly considered a powerful obligation on the part
of the Regents. But what are moral obligations! Did not Regent Giannini
even wish to organize against the Faculty a gang of "20th century
vigilantes" and, contemning the courts, take the law in his
May, 1950, the Faculty members of putative "tenure status"
received annually a salary acceptance form which they had to sign.
the annual meeting of The Regents of the University of California,
your salary for the year ending June 30, 1950, as Professor of .
. . was fixed at $ . . ." (Appendix B).
traditional form was changed surreptitiously. The new forms, distributed
at the height of the oath controversy, in May, 1950, and now containing
the anti-Communist statement, as well as the most recent forms for
the year 1950-51, showed the following text:
is to notify you that you have been appointed Professor of
. . . for the period July 1, 1950, to June 30, 1951, with a salary
at the rate of $ . . . per annum" (Appendix D).
what had actually happened? For a mediaeval historian it is daily
bread to study, compare, and handle forged, falsified, garbled,
or tampered documents. It did not take the present writer very long
to discover the model draft or prototype of the new substitute "contract"
and to unravel, on that occasion, the threads of a texture the woof
of which was mala fides,
are the results of that little investigation in the field of modern
those Senate members with tenure the form was used which began:
"At the annual meeting, etc." It seems to have been the
form originally used for all Faculty members; around 1914 even a
young assistant professor would receive that letter. It is a simple
notification about the salary for the coming year; it contained
neither the word "appoint" nor "reappoint" and
took continuity for granted.
the strictly annual appointees, very reasonably, the "Appointment
Form" was used. It began with the words: "This is to notify
you that you have been appointed, etc." It fixed the salary
at a rate "per annum" and clearly defined the period "July
1, 19 . . . to June 30, 19 . . ., only."
difference of forms made it perfectly obvious that there was also
a difference of matter and substance involved and expressed. The
Salary Acceptance Form ("Your salary for the year ending June
30, 1950, was fixed at . . .") did not imply an appointment,
even less a completely new appointment. As mentioned before, it
notified a person permanently attached to the Faculty of the salary
he could expect for the coming year. The form itself implied one
thing only: Tenure.
Tampering with Contracts.
those manipulations the former "tacit understanding,"
based upon mutual confidence, fairness, and good faith, to the effect
that tenure existed and was respected, was radically wiped out.
And with the old "Form" there went confidence, fairness,
and good faith.
do not know whether it is legal to change contracts without notifying
the contracting party of the intention--an impossible act as to
union members---or whether it is considered fair to substitute for
a good contract an inferior one, which cuts out all the prerogatives
and privileges of the contracting party, in the hope "to get
away with it." However this may be, it is a clear case in which
unbridled absolutistic might bends and deceives moral right. Although
I am sure that very much stronger words would stand a libel suit
and would be appropriate to characterize that kind of procedure
it may suffice here to call it an act of misdemeanor and a breach
of faith, perpetrated against unsuspecting honest men now delivered,
hopelessly and without protection, to arbitrary will, economic pressure,
and implicit bribery.
understand that the foregoing statement is a condition of
my employment (!) and a consideration of payment of my salary."
will be noticed that the word "employment" now has crept
into the appointment form.
of tenure, as expressed by the new forms, was an act indispensable
for the introduction of the new pattern of “conditioned appointment,"
conditioned not by the character and professional qualification
of the appointee, but by his obedience to the Board of Regents,
by his conformity in matters of conscience, and by his willingness
to make a completely empty political statement the voidness and
wantonness of which have been stressed in recent months--so as to
mention only two names--by General Eisenhower and by Archbishop
John J. Mitty of San Francisco.
the taking of this oath would mean by implication that the university
professor is considered an officer or public trust, is of minor
importance here. Important is the fact that this oath had to be
taken once and for all at the time of the first appointment to the
Faculty. According to the newly introduced practice, however, this
oath has to be taken annually.
Repetition of Oaths.
any rate, the new procedure as introduced in 1950 A.D. by Regents
and Administration of the University of California indicates the
intention of those responsible for the new arrangement to abolish
completely the remnants of continuity and of tenure.
Committee on Privilege and Tenure.
Meaning of the Committee.
[the rules of tenure] provide that no professor may be discharged
without specific charges made and proved against him, at
an open hearing at which other members of the Faculty sit in judgment.
are the professor's right to due process and his day in court. They
are his only protection against false accusations, which are all
too easily made, against malice, against politics, and against other
men who merely want his job. To a professor they are the most important
things in a university be cause they mean the security for which
he has given up all other things in life . . .
the Regents intend it or not . . ., it places the Regents in the
position of asserting the arbitrary power to fire from the University
of California any man they please with no hearing at all.
the authority exists to discharge a professor because he will not
sign this oath on demand, then it exists to fire him because he
will not sign an oath that he is not a Catholic, not a Mason, not
a consumer of beer. Once the only barrier that stands in the way
of arbitrary discharge is swept away, there is no place to stop."
followed the new double-cross: overriding customs, statutes, regulations,
and standing orders governing appointment, tenure, and dismissal,
they fired the thirty-one members of the Academic Senate, not because
they were Communists, but for disobedience and non-conformity to
the slender majority of the Board of Regents. Those Senate members
have been discharged "without specific charges made and proved
against them, at an open hearing at which other members of the Faculty
sit in judgment." They have been discharged without even being
given an opportunity to defend themselves against the false charge
of "disobedience," itself a slander detracting from the
character of those dismissed and seriously affecting and damaging
their reputation as educators. They have been discharged, arbitrarily
and capriciously, on the sole authority of the Regents who, by eliminating
the authority of the Committee on Privilege and Tenure to hear a
charge, have violated also the fundamental right of citizens to
due process and trial by jury.
Why I Did Not Sign.
I refused to act under duress, work under the threat of supervision
by vigilantes, yield to compulsion, intimidation, and economic pressure,
or even respond to an alternative comparable to an intellectual
and moral hold-up;
I refused to buy and sell my academic position and scholarly dignity
at the price of my conviction and conscience;
Because I was shocked
by, and disgusted with, the lack of honesty, decency, fairness,
and the tendency to pettifogging and trickery which those responsible
for the procedure against the Faculty have shown from beginning
addition to all that there was, I admit, some professional curiosity.
I had the historian's curiosity to see how far the Regents were
willing to go; whether really they would fire the non-signers against
law and reason; and who, in the long run, would prove the stronger--Regents
or Faculty. Should it really be possible in a free country that
a small ruling group, split in itself, is entitled to enslave the
will of 2000 mature scholars; to disregard, override, and rule against
the articulate will of the repeatedly protesting Faculties of the
world's largest University; to refuse to listen to the tortured
voices of hundreds of honest men under their guard, and thus to
act in an "un-Christian, un-democratic, and un-American"
fashion (Professor E. V. Laitone: San Francisco Chronicle,
April 7, 1950)?
policy which starts from a fundamentally false human
premise is doomed a priori. It is a bungling over the most elementary
rules in the primer of statesmanship to place mature men before
an impossible alternative--"Sign or be fired", with no
way out, because such action unfailingly hits back. The moment they
chose to decree that childish alternative the Regents, not the Faculty
members, had lost their freedom of action. The Regents themselves
now were faced with the impossible alternative of either carrying
through their threat or losing face and authority. They did not
realize that they had lost face and authority by creating that alternative,
and that the best they could do was to regain face and authority
by stepping back. And there were several occasions on which the
Regents could have stepped back in an honorable fashion, the last
time on August 25th. They chose to "save face"--what a
face!--instead of saving the University, and sought, like other
weak people before them, to compensate for lack of wisdom and truly
human experience by unjustified violence and brutal power.
cannot be pleasant for the Regents of the University of California
to find--broadcast over the whole nation and beyond--their dignified
corporation serving as a school model of "political stupidity."
Professor R. E. Fitch, of the Pacific School of Religion, at Berkeley,
defined stupidity "as a talent for not doing what you set out
to do, and for doing what you want to avoid to do."
to this definition (said Dr. Fitch) the loyalty oath at the University
of California is a classic instance of political stupidity. It is
supposed to keep Communists off the University Faculty. There is
no clear evidence that it has done so. It is not supposed
to expel loyal and patriotic Americans from the Faculty. There is
evidence that it has done just that" (Berkeley
Gazette, September 15, 1950).
judgments have been passed on the Regents from many sides and by
scores of prominent citizens. It all reflects unfavorably on the
University of California itself.
probably was this humanly weak disposition of the majority group
of the Regents which the late Dixon Wecter, my colleague in the
Berkeley History Department for far too short a time, may have had
in mind and alluded to when, in a public speech at Sacramento, in
connection with the California Centenary celebration, he said:
a native Texan perhaps I feel this peril with peculiar alarm having
witnessed the lasting havoc wrought upon the largest institution
in that state by a group of regents determined to trim down the
university to a size they can comprehend."
perils have been outlined also by the President of Hiram College,
quoted by Professor Ralph H. Lutz, at Stanford University. (Western
College Association, Proceedings, Spring Meeting, April 1, 1950, p. 22) as follows:
is a truism that no stream rises higher than its source. Likewise
it is true that no college rises above the level of its trustees.
. . . This is apparent when trustees invade the prerogative of any
administrative officer or faculty member, or interfere with the
established program or educational policy of the college."
was exactly one of those inroads into the prerogative of the Faculty
which has brought about the present scandals at the University of
California. The State University is far too precious an institution
to become instrumental to the political ambitions and aims of its
Regents or others. It was the idea of the founders of this University
when they entrusted it to the care of a body of Regents to keep
that institution out of the whirlpools of daily shifting political
constellations, of ephemeral political campaigns, electoral or ideological,
and of political hysteria. Now the trustees themselves have dragged
the University into the eddies of political contingencies. The University
regulations demand that Faculty members "always respect, and
not exploit, their University connection" by making it a platform
for unqualified propaganda. The same restraint has to be expected
on the part of the Regents. They are the natural protectors of academic
freedom; but in their endeavor to protect academic freedom they
have destroyed it when they attacked the right of tenure.
State Universities are contemplating bills to their legislatures
defining academic freedom, making acts restricting such freedom
unlawful, and providing penalties for violating academic freedom
(Appendix F). Whether it would prove useful to prepare a similar
step in the present case is a question that shall not be discussed
here. But unless the Regents give certain guarantees concerning
tenure and the strict observation of the right of tenure, which
includes academic freedom, there will be no peace between the Faculty
and the Board of Regents, and unpredictable damage will continue
to be done to one of the hitherto most democratic State Universities
of the country.
the authority of the State Board of Education
the rank of
REGENTS OF THE UNIVERSITY OF CALIFORNIA
annual budget meeting of The Regents of the University of California,
your salary for the year ending June 30, 1950, as Professor of
kindly sign the enclosed letter and return it to me before the first
of the next month.
REGENTS OF THE UNIVERSITY OF CALIFORNIA
to notify you that you have been appointed Lecturer in
is subject to such deductions as may be required under the Retiring
Annuities System or the State Employees' Retirement Act, and State
and Federal tax deductions.
this appointment can become effective it will be necessary for you
to sign and return the enclosed letter of acceptance. Please do so
at the earliest possible date.
REGENTS OF THE UNIVERSITY OF CALIFORNIA
240 ADMINISTRATION BUILDING
to notify you that you have been appointed Professor of
is subject to such deductions as may be required under the Retiring
Annuities Systems or the State Employees' Retirement Act, and State
and Federal tax deductions.
be necessary for you to sign and return the enclosed letter of acceptance
of the position and salary in the form prescribed by the Regents on
April 21, 1950; and subscribe and swear to the enclosed oath before
a notary public.
OF THE PRESIDENT
June 14, 1940
My dear Dr. X
Let me congratulate
you most warmly on your promotion to the grade of Associate Professor.
This not only marks an advance in itself but places you on the permanent
status which is so important in the academic career. Such a decision
resting upon the careful study by various academic bodies should be
a source of greatest satisfaction to you. My warmest of congratulations
and all good wishes for the future.
House or Senate Bill
an Act Defining Academic Freedom for Members of the Teaching Profession;
Making Acts Restricting Such Freedom Unlawful; and Providing Penalties.
It Enacted by the Legislature of the State of
1. Definitions. As used in this Act, the phrase Academic Freedom shall
mean the right of a member of the teaching profession, including any
person employed as a teacher in any public school, college or institution
of the State of [
] supported by public funds of this state, to engage in
all lawful civic activities acknowledged to inhere in the civic duties,
responsibilities, and privileges of the private citizen, and to belong
to, any lawful political party, labor union, or other lawful organization
of teachers in this, state or any subdivision thereof.
2. Certain Acts Prohibited. Any person who shall interfere with the
Academic Freedom of any teacher as above defined, or who shall intimidate
or threaten said teacher by reason of said teacher's exercise of said
Academic Freedom, or who shall in any way impede said teacher in the
exercise of said freedom, shall be guilty of a misdemeanor. Any member
of a school board or of the State Board of Education, officer or employee
of the State Department of Education, President or officer of any
State School, College or Institution, Superintendent or other administrative
officer of any public high school or elementary school, who shall
individually or as a member of said board, interfere with the exercise
of Academic Freedom as above defined, or who shall make any teacher's
employment or discharge contingent upon the exercise or the non-exercise
of said teacher's Academic Freedom as above defined, shall be guilty
of a misdemeanor.
3. Certain Contracts Unlawful. Any contract of employment between
a teacher and any employing authority, school or board of this state,
which makes it a condition of said employment that said teacher surrender
his Academic Freedom as herein defined, is unlawful, null and void,
insofar as it provides such a condition for employment.
4. Penalties. Any person found guilty of a misdemeanor for violating
the provisions of this act as defined in Section 2 hereof shall be
punished by imprisonment in the county jail for not less than thirty
days and not more than ninety days, and by a fine of not less than
one hundred dollars and not more than five hundred dollars.
5. Repealing Conflicting Acts. All acts or parts of acts in conflict
herewith are hereby repealed.
Source: Kantorowicz, Ernst Hartwig. The Fundamental Issue: Documents and Marginal Notes on the University of California Loyalty Oath (San Francisco: Parker Printing Co., 1950).
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The Regents of the University of California. All rights reserved.
Last updated 11/19/99.